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MARITIME    LEGISLATION 


rRIXTED    BY 

srornswooDE  and  co.,  new-street  square 

LONDUS 


PAPEES 


ON 


MARITIME    LEGISLATION 


WITH    A    TRANSLATION    OF 


THE     GERMAN     MERCANTILE     LAWS 
hi:latixg  to  makitime  commerce 


BY 


ERNEST   EMIL   WENDT,   D.C.L. 


THIRD    EDITION 


LONDON 
LONGMANS,     GREEN,    AND    CO. 

AND  NEW  YORK  :  15  EAST  16">  STREET 
1888 


\  Q  Q  Q       1 


\888 


,V 


PEE FACE 

TO 

c*  THE     THIEl)     EDITION. 

r^  It  is  now  seventeen  years  since  the  Second  Edition  of 
°~  '  Papers  on  Maritime  Legislation '  was  pnblislied,  and 
in  that  time  the  snbjects  dealt  with  by  me  have  been 
mnch  discussed  both  in  this  country  and  in  others.  I 
have  been  asked  to  record  these  discussions — in  many 
of  which  I  have  taken  part — and  their  results  in  a 
permanent  form,  and  I  have  endeavoured  to  carry  this 
out  in  the  present  Third  Edition  of  my  papers. 

In  particular  I  have  to  the  best  of  my  power  de- 
scribed the  history  of  the  General  Average  movement 
which  preceded  and  has  followed  the  issue  of  tlie  York 
and  Antwerp  Eules,  and  of  the  struggle  still  pending 
with  regard  to  the  '  negligence '  and  other  clauses  of  the 
Bill  of  Ladincy, 

o 

And,  if  I  have  ventured  to  express  freely  my  own 
opinion  in  these  pages,  my  excuse  must  be  that  they  are 
at  all  events  the  result  of  many  years'  experience,  as  I 
have  now  been  nearlv  thirtv  years  the  representative  in 


VI  MArJTIME   LEGISLATION. 

this  country  of  the  more  important  maritime  underwriters 
in  all  parts  of  the  world,  and  have  been  personally  con- 
versant with  the  subjects  treated  for  more  than  half  a 
century. 

With  I'eference  to  the  Appendix,  I  may  remark  that 
not  only  the  translation  of  the  German  General  Mercan- 
tile Law  has  been  again  very  carefully  revised,  but  that  a 
translation  of  such  laws  as  by  the  creation  of  the  German 
Empire  were  in  addition  to  the  General  Law  required 
have  been  added. 

It  now  remains  only  for  me  to  express  j^ublicly  to 
those  who  have  so  kindly  assisted  me  in  the  preparation 
of  one  or  the  other  of  these  three  Editions  my  sincere 
gratitude,  and  these  are  :— Sir  Travers  Twiss,  D.C.L.,  Q.C. 
(the  last  Advocate-General),  Dr.  Friedr.  Sieveking  (Presi- 
dent of  the  Ilanseatic  Court  of  Appeal  at  Hamburg), 
Dr.  Charles  Stubbs,  Mr.  Fred.  Stokes  (the  last  Admi- 
ralty Proctor),  and  my  present  partner,  Mr.  Wm.  Arnold. 


4  &  ()  Thhogmokton  Avenue  ; 
Jiihj  1888. 


PEEFACE 


THE     FIRST     EDITION. 


The  time  for  the  reconsideration  of  the  most  important 
parts  of  our  Maritime  Enactments  seems  now  so  near  at 
liand,  that  I  liave  deemed  it  advisable  to  reproduce  in 
the  following  pages  some  materials  which  will,  I  trust, 
be  found  useful  by  those  who  may  be  called  upon  to 
assist  in  the  deliberations  on  the  questions  at  issue. 


15  Fenchurch  Buildings,  London  : 

November  1807. 


rJlEFACE 


THE     SECOND     EDITION. 


'J'lii':  necessity  having  arisen  for  the  issne  of  a  new 
edition  of  this  volnnie,  it  appears  to  nie  to  be  my  duty 
not  only  to  express  in  this  Preface  my  grateful  acknow- 
ledgment of  the  favour  with  which  the  first  edition  has 
been  received,  but  likewise  to  add,  with  respect  to  the 
subject-matter  therein  treated,  a  few  remarks  necessi- 
tated either  by  actual  or  attempted  subsequent  legis- 
lation. 

But  before  I  do  so,  I  may  be  permitted  for  a  moment 
to  refer  to  certain  critical  observations  which  came  to 
my  notice  soon  after  the  publication  of  the  first  edition, 
and  which  characterised  my  work  as  an  exposition  of 
German  views.  I  am,  however,  although  a  native  of 
Germany,  a  British  subject,  and  have  been  a  resident  in 
this  country  for  more  than  twenty  years,  during  which 
not  only  a  close  observance  of  everything  relating  to 
maritime  commerce,  but  a  careful  study  of  our  laws 
and  customs,  has  been  my  constant  duty. 

So  that,  although  the  introduction  of  steam  power 
aiid  telegraphic  communication  has  more  than  previously 
cemented  all  the   nations   of  the    world   into   one  and  the 


X  MARITIME    LEGISLATION. 

same  great  Trading  Community,  and  therefore  in  tlie  im- 
provement of  our  laws  not  only  British  sul)jects,  but  the 
citizens  of  all  other  nations  have  a  very  material  interest, 
my  observations  on  them  were  never  intended  to  be 
merely  foreign  views,  which,  if  disagreeable  to  a  very 
influential  body  of  men,  could  readily  be  shelved,  but  the 
suggestions  of  a  British  subject,  who  has  been  for  more 
than  thirty  years  practically  engaged  in  the  consideration 
of  matters  of  International  and  General  Maritime  Law,  to 
an  extent  which  falls  to  the  lot  of  only  few.  This  will 
readily  be  believed  l)y  those  who  are  aware  that  I  have 
been  for  years,  and  am  now,  honoured  with  the  powers  of 
attorney  of  more  than  Two  hundred  Marine  Insurance 
Companies  and  Associations  in  different  States  of  Europe 
and  America,  for  the  purpose  of  protecting  their  in- 
terests in  cases  of  shipwreck  within  the  United  Kingdom 
of  Great  Britain  and  Ireland,  and  of  conducting  their 
lawsuits  within  this  territory.  This  fact  should,  I  think, 
give  some  weight  to  the  remarks  which  I  feel  it  my  duty 
to  submit ;  and  here  may  I  beg  to  remind  my  readers  of 
a  sentence  which  His  Eoyal  Highness  the  late  Prince 
Consort  uttered  on  a  rather  remarkal^le  occasion  to  the 
following  effect : — 

I  conceive  it  to  be  the  duty  of  every  educated  person 
closely  to  watcli  and  study  the  time  in  wliicli  he  lives,  and, 
as  far  as  in  liini  lies,  to  add  his  humble  mite  of  individual 
exertion  to  further  the  accomplishment  of  what  he  believes 
Providence  to  have  ordained. 

Nobody,  however,  who  has  paid  any  attention  to  the 
])eculiar  features  of  our  present  era,  will  doubt  for  a  moment 
tli;it  \v.>  art-  livinf;^  a1  a  ])('riod  of  most  woudcifiil  transition, 
whicli    Irnds  r;i|Mdly  to   acfoiii|ili>li    lliat    ^n-cal  end    to   which, 


PREFACE   TO   THE   SECOND   EDITION.  XI 

indeed,  all  history  points — tlie  realisation  of  the  uidtij  ofinon- 
Ichid. 

Not  a  unity  which  breaks  down  the  limits  and  levels  the 
peculiar  characteristics  of  the  different  nations  of  the  earth, 
but  rather  a  unity,  the  result  and  iirodud  of  those  very 
national  varieties  and  antagonistic  qualities. 

The  alterations  I  have  made  in  this  edition  are  but 
few  ;  the  principal  are  the  different  order  in  which  the 
contents  appear,  and,  in  consequence  of  a  suggestion  for 
which  I  feel  very  grateful,  the  reprint  of  the  clauses  of 
the  Acts  upon  which  my  observations  were  intended  to 
bear. 

I  trust  that  the  class  of  readers  for  whom  this  second 
edition  is  more  particularly  intended  will  fmd  this  more 
systematical  form  an  improvement,  and  that  the  same 
may  be  said  for  the  addition  made  in  reprinting  the 
clauses  of  the  different  Acts. 

Let  me  now  review,  as  concisely  as  possible,  the  dif- 
ferent subjects  in  their  present  order. 


I  am  sorry  to  be  obliged  to  record  that,  in  spite  of 
the  repeated  attempts  made  by  the  Associated  Chambers 
of  Commerce  to  prevail  upon  the  Board  of  Trade  to 
make  the  International  General  Average  Eules,  as 
adopted  at  the  Congress  of  Delegates  at  York,  in  Sep- 
tember 1864,  a  subject  of  imperial  legislation,  nothing 
has  been  done. 

Why  not,  may  appear  a  mystery  to  those  who  re- 
member that  at  the  request  of  the  Liverpool  Chamber 
of  Commerce  the  Foreign  Office  issued  instructions  to 
their  principal  consular  officers  abroad,  for  the  purpose 


Xll  MARITIME    LEGISLATION. 

of  urging  wpon  the  authorities  where  they  were  accre- 
dited the  desirability  of  sending  delegates  to  the  York 
Congress,  expressing  at  the  same  time  the  deep  interest 
Her  Majesty's  Government  felt  in  the  result  of  the  deli- 
berations. Such  result  may  have  been  unexpected,  but 
it  was  to  be  hoped  that  the  interest  of  the  Government 
might  survive  the  disclosure  that  some  of  our  peculi- 
arities were  almost  universally  condemned. 


II. 

That  under  such  circumstances  the  International  Law 
of  Affreightment,  as  adopted  at  a  Congress  held  at  Shef- 
field in  1865,  which  is  of  equal  importance  to  the  mer- 
cantile community  generally,  has  not  been  brought  by  the 
Board  of  Trade  before  any  branch  of  the  Legislature, 
cannot  surprise. 

m. 

It  has  often  been  remarked  that  if  the  late  Lord 
Kingsdown  had  been  sitting,  such  an  infringement  of 
International  Law  as  the  Judicial  Committee  of  Her 
Majesty's  Privy  Council  committed  in  the  decision  of 
the  'Marie  de  Brabant'  could  never  have  occurred; 
but  it  is  more  remarkable  still  that,  notwithstanding  the 
conclusions  whicli  I  submitted  in  this  correspondence, 
the  Law  Officei's  of  the  Crown  should  not  have  insisted 
(jii  recommending  the  erasure  of  tliis  l)lot  from  our 
Statute-book;  or,  is  the  iii(Iiienc('  of  llic  large  Steamboat 
Companies  so  gj-cal  that  tlicy  can  witli  tlicii-  power  so 
easilv  dety  Ihf  dj'tn-  nnd  iiicontrorirlihli'  right? 


niEFACE   TO   Till':   SECOND   EDITION.  xiii 


IV. 

The  Board  of  Trade  not  having  considered  it  advisable 
to  lay  before  Parliament  my  observations  on  the  Acts 
here  referred  to,  it  will  not  occasion  surprise  that  I  have 
here  reprinted  them ;  especially  when  the  different  Bills 
laid  before  the  House  of  Commons  since  have  proved  that 
the  Board  of  Trade  only  approved  my  suggestion  respect- 
ing the  abolition  of  compulsory  Pilotage,  and  left  many 
other  subjects  with  which  I  had  dealt — not  merely  from 
the  underwriters'  point  of  view,  but  in  an  entirely  bond 
jide  spirit — altogether  out  of  consideration. 

That  the  Merchant  Shipping  Bill  and  the  Merchant 
Shipping  Code  of  1870  and  1871,  Mr.  Farrer's  two  Me- 
moranda on  them,  Sir  William  Mitchell's  Eeview,  Mr. 
H.  C.  Chapman's  brief  Eeview,  the  Eeport  published  by  the 
Liverpool  Chamber  of  Commerce,  as  w^ell  as  Mr.  Augustus 
Smith's  notes,  have  had  my  serious  attention,  will  readily 
be  believed ;  and  I  may  be  permitted  to  say,  that  from  all 
I  have  seen  and  heard,  I  am  confirmed  in  the  conviction 
that  if  Her  Majesty's  Government  is  really  desirous  of 
improving  Maritime  Legislation,  so  as  to  command  not 
only  the  respect  but  the  adhesion  of  tlie  great  Trading 
Cojnmunity  of  the  ivhole  World,  this  can  only  be  accom- 
plished by  appointing  a  Royal  Commission  to  inquire  into 
and  report  on  the  state  of  and  the  desired  improvements 
in  the  whole  of  our  Maritime  Law,  as  well  as  to  specify 
the  subjects  which  ought  to  be  more  or  less  brought  into 
harmony  with  the  laws  and  customs  of  the  other  principal 
nations. 

The  task  of  such  a  Eoyal  Commission  will  not  be  an 


xvi  MARITIME   LEGISLATION. 

U)  furtlier  discussion.  Altliough,  undoubtedly,  some 
matters  connected  with  the  working  of  the  Admiralty 
Court  are  open  to  improvement — and  here  I  may  refer  to 
the  very  able  letter  which  my  friend,  Mr.  W.  T.  Pritchard, 
addressed  to  the  Judge  of  the  Court  at  the  commencement 
of  1868,  and  which  appeared  in  print — I  am  rather  in- 
clined to  think  that  if  the  complaints  of  the  memorialists 
are  carefully  sifted,  it  will  be  found  that  they  might  with 
equal  or  even  greater  justice  be  brought  against  any  other 
Court  in  the  United  Kingdom. 

The  '  County  Courts  Admiralty  Jurisdiction  Act,  1868  ' 
(31  &  32  Vict.  c.  71),  the  County  Courts  Admiralty 
Jurisdiction  Amendment  Act,  1869  (32  &  33  Vict.  c.  51), 
and  the  Liverpool  Admiralty  District  Eegistrars'  Act, 
1870  (33  &  34  Vict.  c.  45),  have,  I  am  sorry  to  state,  not 
been  able  to  give  that  satisfaction — if  any — wliich  the 
general  public  anticipated,  because  there  are  few  County 
Court  Judges  who  can  readily  comprehend  the  subject- 
matters  brought  before  them  under  these  Acts,  and  if  they 
can,  their  time  is  so  fully  occupied  with  the  multifarious 
duties  devolving  upon  them  in  the  different  towns  of  their 
district  that  one  of  the  principal  objects  to  be  attained, 
viz.  a  quick  despatch,  is  out  of  question  altogether ;  and 
finally,  the  expenses  are  beyond  everything  anticipated. 

The  very  fact  that,  since  the  hrst  of  these  County 
Court  Acts  became  law,  every  session  has  produced  an 
Amendment  or  additional  Act,  has  in  itself  been  sufficient 
to  ])rf'Vf'iit  tlio  Judges,  Registrars,  &c.,  of  these  Courts 
IVoiii  l)('<'()iiiiiig  coiiversaut  witli  tlicii-  dulics,  and  it  will 
liardly  Ix'  believed  lliat,  in  sj)ite  ot"  .'ill  tliis  j)i(H-euu'al 
legislation,  the  cardinal  necessity  lias  hccn  overlooked  ol" 
)iiakin<f  1  lie   ('omls   afcessiMc   fo   the   owiici's   of"  pi-opcrU' 


PnEFACK   TO   THE   SECOND    EDITION.  XVll 

salved  as  well  as  to  the  salvors,  as  was  the  case  under  the 
460th  section  of  the  Merchant  Shipping  Act. 

That  under  these  circumstances  attempts  should  have 
been  made  still  further  to  extend  the  Admiralty  Juris- 
diction of  the  County  Courts,  and  to  establish  Admiralty 
Eegistries  with  the  same  official  duties  as  the  Eegistry 
of  the  High  Court,  has  taken  me  and  many  others  by 
surprise. 

Wliat  the  general  public  really  want  are  Admiralty 
Courts  sitting,  as  in  olden  times,  de  die  in  diem  {ov  from 
tide  to  tide,  as  expressed  elsewhere),  so  that  the  hearing 
and  determining  of  any  cause  can  be  proceeded  with  as 
soon  as  both  parties  have  been  able  to  collect  their 
evidence,  and  to  comply  with  such  simple  forms  as  are 
absolutely  necessary  in  order  to  obtain  complete  justice  ; 
because  it  ought  not  to  be  overlooked  that  at  present 
the  preparatory  proceedings  for  the  hearing  and  deter- 
mination of  any  cause  require  several  weeks,  unless 
both  parties  are  equally  anxious  to  push  matters  for- 
ward, and  only  too  often  delay  is  one  of  the  weapons 
made  use  of  for  purposes  of  extortion.  I  imagine  it 
would  be  considerably  more  conducive  to  the  general 
interest,  if,  bearing  in  mind  the  suggestion  as  to  the 
improvement  in  the  despatch  of  the  Admiralty  business, 
in  lieu  of  the  County  Courts  with  Admiralty  jurisdic- 
tion, a  certain  number  of  Vice-Admiralty  Courts,  say 
at  Liverpool,  Cardiff,  Falmouth,  Deal,  Great  Yarmouth, 
Hull,  and  Newcastle-on-Tyne,  were  established  for  the 
purpose  of  exercising  a  jurisdiction  identical  with  that 
of  the  High  Court,  for  all  cases  which  arise  within  a 
certain  district  attached  to  each  of  such  Vice-Admiralty 
Courts ;    further,    for    all    cases    where    plaintiff  and   de- 

a.  2 


xviii  MARITIME   LEGISLATION. 

feiiclant  are  resident  within  such  district ;  and,  finally, 
for  all  cases  where  plaintiff  and  defendant  (non-residents) 
agree  to  such  jurisdiction.  The  territorial  limits  to  be 
fixed  with  regard  to  the  peculiar  Admiralty  business 
which  is  principally  expected  at  the  particular  Court,' 
and  which  can  easily  be  defined.  The  Appeal  to  go, 
as  from  the  Colonial  Yice-Admiralty  Courts,  direct  to  the 
Judicial  Committee  of  Her  Majesty's  Privy  Council. 

I  have  no  doubt  that  a  carefully  compiled  return 
would  prove  that  most  of  such  Yice-Admiralty  Courts, 
if  not  all,  would  be  self-supporting. 

Yl} 

My  observations  under  this  head  as  well  as  under 

YII.2 

will,  1  trust,  not  be  found  out  of  place. 

YIII. 

My  conviction,  that  in  the  interest  of  bo)id  fide  trade 
the  addition  there  proposed  to  the  International  Criminal 
Law  would  be  of  immense  advantage,  renuiins  unaltered. 

IX. 

I  readily  acknowledge  that  the  subject  here  treated — 
depositions  to  be  taken  before  the  Eeceivers  of  Wreck 
h;i>  li;id   tli<'   f i\'oiir,'il)l('   coiisidcrntion  of  the   T^oard  of 


'  Tlii.s  Koction  was  entitled:  '  ObRorvations  oji  tlic  oHire  of  .7ii(l;,'c  in  the 
Admiralty,  Divorce,  and  l'rol)atc  Courts  Bill,  dated  Jiuio  1!),  l.S(i7.' 

''■  'I'liis  Kection  waH  entitled:  '  IJarristors'  Petition  af,'aiiist  Extension  df 
Adiiiir!i,lt  V  .lurisiliction,  and  rcni;irl<s  llicrcim.' 


rUEFAC]-:   TO   THE   SECOND    EDITICN.  xix 

Trade.     8till,  however,  they  have  not  been  made,   as  I 
tliink  tliey  sliould  be,  compulsory. 

The  major  part  of  the  subjects  herein  enumerated 
remain  yet  open  questions ;  a  remark  which  hkewise 
apphes  to 

XI.i 

and  the  Memorials  alluded  to  uiider  these  heads. 

In  conclusion,  I  cannot  but  express  the  unfeigned 
gratification  with  which  I  have  seen  my  translation  of 
the  German  General  Mercantile  Law  referred  to  and 
relied  upon  in  the  course  of  the  important  and  interesting 
litigation  which  has  not  unnaturally  resulted  irom  the 
recent  hostilities  on  the  Continent.  For  the  present 
edition  this  translation  has  been  carefully  revised,  and 
some  accidental— but  happily  unimportant — inaccuracies 
have  been  removed,  and  I  sincerely  trust  that  it  may 
continue  to  be  found  worthy  of  attention  in  the  course  of 
further  litigation  as  well  as  of  future  legislation. 

^  The  letters  here  referred  to  m  both  Sections  X.  and  XL  appear  m  this 
Third  Edition,  S2ib  X. 

15  Fenchurch  Buildings,  London  : 
September  1871. 


CONTENTS. 


I'AGK 

INTRODUCTION xxiii 

I. 

International  Law  of  General  Average 1 

II. 

International    Law   of   Affreightment    in    connection   with   the 

ATTEMPTS  to  AGREE    UPON    UNIFORMITY   IN    THE   WORDING   OF   BiLLS 

OF  Lading 295 

III. 

Correspondence  with  the  Board  of  Trade  relating  to  the  in- 
fringement OF  the  International  Law  by  the  Judicial 
Committee  of  H.M.  Privy  Council  in  the  decision  of  the 
'  Marie  de  Brabant  ' 513 

IV. 

Observations,  dated  December  1886,  on  17  and  18  Vict.  Cf^p.  104  (The 
Merchant  Shipping  Act,  1854) ;  17  and  18  Vict.  cap.  120  (The  Mer- 
chant Shipping  Kepeal  Act,  1854)  ;  18  &  19  Vict.  cap.  91  (The 
Merchant  Shipping  Act  iUnendnient  Act,  1855) ;  25  &  26  Vict. 
cap.  63  (The  Merchant  Shipping  Act  Amendment  Act,  1862)    .         .  527 

V. 

Admiralty  Jurisdiction  of  County  Courts 621 

VL 

Suggestions  foe  the  Improvement  of  Admiralty  Practice      .        ,  624 

VII. 

Freight,  when  ship  abandoned  at  sea        ......  627 


XXll  MARITIME   LEGISLATION. 

VIII. 

Eeasons  why  the  making  away  with,  or  aiding  and  abetting  in 
scuttling  or  otherwise  destroying  a  vessel  for  the  purpose 
of  defrauding  its  underwriters,  or  those  who  have  an  inte- 
rest therein,  or  in  the  cargo  or  freight,  should,  by  agree- 
ment between  the  principal  maritime  nations,  be  declared 
an  act  of  piracy 080 

IX. 

Merchant  Ships'  Logs,  Protests  and  Depositions  before  Receivers  655 

X. 

Various  papers  showing    how  most  of  these   subjects  have  been 

URGED    upon  the    Board  OF  Trade G70 

XI. 

Appellate  Jurisdiction  in  Maritime  Causes GBl 


APPENDIX. 

Translation  of  the  German  Mercantile  Law  relating  to  Maritime 

Commerce,  and  of —  087 

1.  Regulation  for  seamen  of  December  27,  1872  ....     790 

2.  Law  respecting  the  obligation  of  German  merchant  vessels  to 

take  home  distressed  seamen  of  December  27,  1872      .         .     811 

3.  Annex  A  to  the  above,  viz. :  Law  respecting  the  nationality  of 

merchant  vessels,  and  their  right  to  caiTy  the  flag  of  the 
Confederation,  of  October  25,  1867 813 

4.  Law  relating   to  registration   and   designation  of  merchant 

vessels  of  Jime  28,  1873 817 

5.  I^aw  respecting  coast  trading  voyages  of  May  22,  1881    .         .     817 
INDEX  .  819 


INTEODUCTION. 


It  ought  never  to  be  overlooked,  that  there  is  as  much  a 
law  of  the  sea  as  there  is  a  law  of  the  land,  and  that,  just 
as  the  Courts  of  Common  Law  and  Equity  have  been 
established  for  the  purpose  of  deciding  differences  arising 
within  the  territorial  limits  of  the  realm,  the  Court  of 
Admiralty  was,  at  a  period  beyond  legal  memory, 
established  especially  to  take  cognisance  of  all  maritime 
contracts  or  torts,  and  all  injuries  or  offences  committed 
upon  the  high  seas,  in  ports  and  havens,  as  far  as  the  ebb 
and  flow  of  the  tide,  in  great  rivers,  beneath  the  first 
bridges  thereof,  and  in  all  foreign  parts,  and  based  its 
decisions,  as  did  the  other  European  Admiralty  Courts,  on 
the  Law  Maritime  and  on  the  Eoman  Civil  Law. 

But  attention  should  be  paid  to  another  difference 
between  the  Admiralt}^  and  the  Municipal  Courts,  namely, 
that  whereas  in  the  latter,  matters  of  fact  are  to  be 
decided  by  a  jury,  the  Judge  of  the  former,  assisted  by 
nautical  assessors,  decides  alike  matters  of  fact  and 
questions  of  law. 

The  consequence  is,  that  the  decisions  in  the  Admi- 
ralty Court — in  spite  of  the  great  expenses,  and  some 
other  evils,  which,  however,  may  be  easily  rectified — liave 
been  much  more  approved  b}'  the  mercantile  communities 
here  and  abroad,  than  the  decisions  in  the  Common  Law 


XXIV  MARITLAJE   LEGISLATION. 

Courts,  where  juries  are  frequeutly  called  upon  to  pro- 
nounce an  opinion  upon  intricate  commercial  matters 
which  they  are  incomj^etent  to  comprehend,  and  some- 
times return  verdicts  utterly  at  variance  with  common 
sense. 

Our  Xorth  American  cousins  have,  in  their  wisdom, 
left  the  Admiralty  jurisdiction  entirely  intact  as  they 
received  it  from  the  British  Crown,  and  anybody  aiming  at 
a  Judgeship  in  their  Courts  clothed  with  Admiralty  jurisdic- 
tion has  to  pass  through  a  course  of  study  of  the  Civil 
Law,  which  very  few  members  of  the  English  Bar  have 
thought  it  necessary  to  master. 

The  great  importance  of  this  point  ought  not  to  be 
lost  sight  of,  as  in  case,  by  certain  positive  enactments, 
the  Judgeship  in  the  Admiralty  Court,  and  a  seat  in  the 
Appeal  Court,  should  not  be  reserved  for  learned  civilians, 
it  is  difficult  to  see,  not  only  how  these  Courts  can  be 
efficiently  administered,  but  where  the  Foreign  Office 
and  the  Lords  of  the  Admiralty,  as  well  as  the  general 
public,  are  in  future  to  choose  their  advisers  in  matters 
of  international  and  general  Maritime  Law,  wdiom,  for 
centuries,  they  have  been  accustomed  to  look  for  amongst 
the  civilians. 

I  ought  here  to  mention  that,  according  to  an  official 
memorandum  recently  circulated,  the  present  jurisdiction 
of  the  High  Court  of  Admiralty  of  England  embraces  the 
following  subjects  : — 

(Partly  under  old  law,  partly  under  recent  statutes, 
o  &  4  Vict.  c.  Go,  and  24  Vict.  10.) 

A.  Colliiiioii.  iiiclu(.liiig  ;ill  tlaiiiaf,^'  duiic  1)V  ;i  bliip. 
Jl.   Towjigi'. 


INTHODUCllOX.  .\XV 

C.  V\\o\n<rr. 

IK   Salva^,  iucliidin^  Lite  Salvage. 

A'.  Wages, 

7*'.  Bottorarv  and  l{es[)()ii(leutia  Jk)iids. 

^r.  Master's  accounti;^. 

//.  Personal  actions  for  damage  between  crew  or  ])assenger.s  and 
owners. 

r.  Mortgages  of  siiijis. 

./.  Transfers  of  ships. 

K.  Right  to  possession  of  ships. 

L.  Questions  between  co-owners  of  ships, 

M.  Damage  to,  or  detention  of,  imported  cargo,  where  owner  is 
not  domiciled  in  England. 

N.  Necessaries  when  0"vsTier  is  not  domiciled  in  England. 

V.  Building,  equipping,  or  repairing  a  ship  when  under  arrest. 

P.  Settlement  of  liability  for  personal  and  other  injury  in  case  of 
several  claims  against  ship,  and  distribution  of  amount  found 
due  when  ship  is  under  ari-est,  Part  IX.,  Merchant  Shipping 
Act,  s.  514,  extended  by  2i  Vict.  c.  10,  s.  13. 

Q.  In  addition,  the  Court  has  found  it  absolutely  necessary  to  deal 
with  other  questions,  such  as  freight  and  average,  when 
those  questions  have  arisen  with  respect  to  property  in  the 
hands  of  the  Court  (see  2  Moore's  '  Privy  Council  Cases,'  New 
Series,  pp.  215,  235,  240  ;  Place  v.  Potts,  5  '  House  of  Lords,' 
383), 

and  that  it  has  been  propoyed  to  add  the  folluwino'  subjects, 
viz.  : — 

A,  Freight,  and  ([utstions  arising  between  Shipowner  and  Merchant 

on  Charter-parties  and  Bills  of  Lading. 
yi.  Demurrage. 

C.  Average. 

D.  Damage  to,  or  detention  of,  cargo,  when  owner  is  domiciled  in 

England,  and  under  Charter-party. 

E.  Necessaries,  when  owner  is  domiciled  in  England. 

J^'.  Building,  e(|nipping,  or  re]iairing  a  ship  when  nut  under 
arrest. 


XXVI  MAPJTIME    LEGISIATION. 

G.  Insurance. 

//.  In  addition,  there  will  be,  no  doubt,  other  matters  arising  out 

of,  and  incident  to,  the  relations  between  Shipowner,  Master, 

Merchant,  and  Underwriter. 

With  respect  to  the  movement  to  obtain  for  County 
and  other  local  Courts  an  Admiralty  jurisdiction,  it  appears 
to  me  that  the  discussions  which  have  taken  place  in  and 
out  of  Parliament,  so  far  as  I  have  been  able  to  follow 
them,  have  left  entirely  untouched  the  consideration  of  the 
following  question : — 

How  a  Court  at  Liverpool,  for  instance,  or  any  other 
local  Court,  or  any  Admiralty  Court  but  the  High  Court 
sitting  at  Westminster,  can  be  expected  to  satisfy  the  re- 
quirements of  any  other  than  the  local  merchant  or  ship- 
owner ? 

But  before  proceeding  w4th  my  argument,  I  may  state 
that  there  is,  in  my  opinion,  a  very  great  difference  of 
principle  involved  in  the  question,  whether  the  anxiety 
which  the  merchants  of  some  towns  have  evinced  for  a 
local  Admiralty  jurisdiction  solely  aims  at  Courts  for  the 
purpose  of  settling  differences  between  merchants  and 
others,  where  both  plaintiff  and  defendant  are  residing 
in  the  same  town,  or,  as  generally  has  been  assumed,  at 
Courts  where  a  non-resident  plaintiff  having  a  difference 
with  a  resident  defendant,  should  be  obliged  to  sue. 

Now  it  is  evident  that  to  the  former  case  alone  the 
commonplace  phrase  of  bringing  justice  to  everybodj^'s 
door  can  properly  be  applied  ;  for  neither  a  merchant  of 
Newcastle,  noi'  of  Loiido]),  nor  of  Hull,  iioi-  of  Ih'istol, 
would  cousidci-  it  a  sound  applicalioii  of  tliis  principle,  if 
he  wf](*  for(;e(l  1(»  ])iiisii('  any  claim  he  niiglil  have,  not  in 
llic  lowii  wlicrc  he  ic^i(h'S.  iioi'  in  llic  iiicl  ropolis  where  all 


INTRODUCTION.  xxvii 

tlie  other  Courts  of  Englisli  judicature  are  efficiently 
conducted,  and  where,  consequently,  the  whole  forensic 
machinery  of  barristers,  solicitors,  and  proctors  is  in 
perfect  working  order  ;  but  in  Liverpool,  for  instance, 
where  a  non-resident  plaintiff  would  have  to  encounter,  as 
a  stranger,  difficulties  at  present  entirely  unknown  to  him. 

The  High  Court  of  Admiralty,  as  a  central  tribunal, 
having  so  many  cases  of  every  description  brought  before 
it,  has  acquired  great  aptitude  for  the  transaction  of 
business,  which  must  be  impaired  if  that  business  be 
curtailed  by  the  establishment  in  Liverpool  and  other 
towns  of  Admiralty  Courts,  with  an  identical  jurisdiction 
to  the  High  Court. 

The  late  Lord  Justice  Knight-Bruce  once  said  in  an 

appeal  before  Privy  Council,  in  which  foreign  merchants 

were  interested,  '  2^6  ought  not  to  forget  that  there  are  other 

people  in  the  icorld  besides  ourselves,'  and  these  other  people 

have  quite  as  much  interest  that  cheap  and  speedy  justice 

should  be  done  in  our  Admiralty  Courts  as  we  ourselves 

have.     No  Liverpool  merchant  who  is  to  be  sued  by  a 

London  merchant,  or  vice  versa,  can  really  maintain  that 

there  is  a  difference  in  the  expenses  of  the  suit,  whether 

one    of  the  parties  with  all   his  witnesses   travels  from 

London   to   Liverpool,    or  the    oilier  from  Liverpool  to 

London ;    and  if  the  assertion,  that  Liverpool  contributes 

in   the    number   of  cases  coming  before   the   Admiralty 

Court  very  little  less  than  London,  be  correct,  does  that 

not  show  that  very  serious  inconvenience  and  pecuniary 

loss  would  be  inflicted  upon  a  comparatively  large  number 

of  merchants  not  resident  in  Liverpool,  if  they  were  to  be 

forced  to  apply  to  a  new^  and  untried  Court  elsewhere  ? 

As  I  pointed  out  above,  if  as  a  general  rule  all  })ai'ties 


XXVIU  MAlilTIME    LEGISLATIOxV. 

to  an  Admiralty  suit  were  resident  in  one  and  the  same 
place,  the  desire  for  local  Courts  could  not  only  be  under- 
stood but  would  be  highly  appreciated ;  but  as  in  the 
majority  of  cases  which  come  before  the  High  Court  of 
Admiralty,  the  parties  are  either  resident  in  or  have 
more  easy  access  to  London,  and  their  representatives 
reside  for  the  most  part  in  London,  it  is  in  my  mind 
beyond  a  doul)t  that  the  result  of  the  proposed  inno- 
vation would  be  highly  prejudicial  to  very  important 
interests. 

The  proposed  dispersion  of  the  Admiralty  business  is 
also  calculated  to  impair  the  efficiency  of  the  prac- 
titioners. There  are  at  present  many  more  well-qualified 
practitioners  who  could  be  spared  from,  the  other 
branches  of  the  law  with  safety  to  their  clients  than 
from  the  Admiralty  Court,  which  has  hardly  recovered 
from  the  retirement  of  the  great  body  of  proctors.  The 
few  2:)roctors  and  solicitors  who  habitually  practice  in  it 
would  have  little  encouragement  to  continue  their  staff 
of  clerks,  &c.,  if  the  present  business  of  the  High  Court 
of  Admiralty  were  to  be  dispersed  amongst  several  local 
Courts. 

I  know  tliat  my  excuse  for  venturing  to  touch  upon 
these  subjects  can  only  be  their  vast  importance  to  those 
enormous  interests  which  could  not  but  suffer  if  what 
appears  to  l^e  the  favoured  scheme  of  some  influential 
UK  in1)('is  of  our  Bar  was  really  carried  out. 

licforc  coiicliidiug,  I  ought  to  o])serv('  that  the  reason 
lor  riiv  adding  ii  translation  of  the  Micmiaii  Mnritinie 
Law,'  as  an  Ai)peiidix  to  these  Papers,  is  sim[)ly  tliat  the 
great  care  and  reseni'di  dis[)lay('d  in  (lie  frnming  of  its 
dillrrcnl   chiiises  cntillc   it    (o  cxcrNconsidciation  on    the 


INTRODUCTION.  xxix 

part  of  those  who  may  be  engaged  in  the  preparation  of  a 
simihir  compihition  for  this  country. 

Nothing  can  be  a  better  proof  of  the  correctness  of 
the  assertion  than  the  fact  that,  after  the  members  of  the 
late  Germanic  Confederation  had  decided  in  1856  to  con- 
voke a  meeting  of  delegates  for  tlie  purpose  of  agreeing 
upon  one  general  mercantile  laic  for  the  whole  of  their 
territory,  the  Prussian  Government  appointed  three  com- 
mittees of  merchants,  one  in  Stettin,  one  in  Danzig,  and 
one  in  Koenigsberg,  in  order  to  investigate  and  collect  the 
most  desirable  body  of  maritime  law ;  and  when  the  German 
commissioners  met  at  Hamburg  on  April  26,  1858,  their 
Prussian  colleagues  were  enabled  to  lay  before  them  a  well- 
considered  draft  of  a  Common  Maritime  Law,  together 
with  carefully  compiled  reasons  for  the  same. 

The  results  of  the  deliberations  of  the  commissioners, 
who  were  assisted  by  delegates  from  the  most  important 
mercantile  communities  of  Germany,  renowned  for  their 
practical  knowledge  of  those  matters,  were  referred  to  the 
different  Governments  for  perusal,  and  after  they  had  in- 
structed their  commissioners  as  to  the  different  views  they 
took  of  the  draft,  the  commissioners  met  again  and  again 
for  the  revision  and  super-revision  of  it,  and  finally  on 
March  1,  1862,  the  Government  of  Prussia  set  the  example 
of  adopting  the  revised  draft  as  its  public  law  in  maritime 
matters. 

Tliat  law  has  subsequently  come  into  operation 
throughout  the  whole  of  Germany,  and  I  cannot  deny 
myself  the  satisfaction  of  here  observing  that  the  minutes 
or  protocols  of  the  deliberations  of  these  commissioners, 
which  have  been  fully  puloHslied,  afford  tlie  most  interest- 
ing study  on  all  questions  of  Maritime  Law. 


I. 

INTERNATIONAL    LAW    OF    GENERAL 
AVERAGE. 

Although  tlie  history  of  tlie  movement  which  led  to  a 
very  general  adoption  of  the  pi'inciples  laid  down  for  the 
uniform  recrulation  of  General  Avera^^e  bv  the  so-called 
'  York  and  Antwerp  Eules  '  has  been  written  by  Mr. 
Eichard  Lowndes  in  the  third  edition  of  his  able  work, 
'  The  Law  of  General  Average  (English  and  Foreign),' 
1878,  and  by  several  others,  it  has,  as  far  as  I  am  aware, 
not  yet  been  attempted  to  reproduce  in  a  collected  form 
the  discussions  which  paved  the  way  and  ultimately  led 
to  the  adoption  of  those  rules,  and  my  object  in  reprint- 
ing some  of  them  and  printing  others  for  the  first  time  is, 
that  future  students  of  matters  connected  with  this  sub- 
ject may  have  before  them  all  the  arguments  advanced  in 
relation  thereto. 

The  initiation  of  this  important  movement  was  caused 
by  the  issue  of  the  following  circular  to  the  principal 
Chambers  of  Commerce  and  bodies  of  Underwriters  of 
Europe  and  America  : — 

National  Association  for  the  Promotion  of  Social  Science. 
3  ^Yaterloo  Place,  London.     May  3,  1860. 

Gentlemen, — The  system  of  General  Average  is  one  vvliicl],  to 
prevent  confusion  and  injustice,  pre-eminently  requires  that  the 
same  principles  should  be  acknowledged  amongst  the  chief  maritime 
nations.  So  far  is  this  from  being  the  case,  however,  that  some  of 
the  most  important  rules  vary  not  only  in  the  same  country,  but  in 

Mr 


2  MARITIME   LEGISLATION. 

the  same  port.  Uncertainty  in  law  is  always  an  evil ;  and,  in  regard 
to  General  Average,  the  evil  is  peculiarly  felt.  The  ship  may  be 
owned  in  one  country,  insured  in  another,  her  cargo  owned  and  in- 
sured in  several,  and  the  port  of  destination,  where  the  General 
Average  is  made  up,  may  be  in  a  country  which  has  different  rules 
to  any  of  the  others.  What  is  considered  to  be  Particular  Average 
on  ship  in  one  port  is  held  to  be  General  Average  in  another,  so 
that  the  owner  of  an  outward-bound  ship  may  find  himself  unable 
to  recover  his  loss  either  from  his  Underwriters  at  home,  or  as 
General  Average  abroad ;  or,  on  the  other  hand,  he  may  be  in  a 
position  to  indemnify  himself  fraudulently  twice  over.  A  similar 
remark  would  apply  to  special  charges  on  freight  and  on  cargo. 
A  very  large  proportion  of  the  most  important  questions  rests  in 
England  nominally  upon  the  decision  of  that  extremely  vague 
authority,  '  the  custom  of  Lloyd's,'  but  really  depends  upon  the 
idiosyncrasy  of  the  particular  adjuster  who  may  be  entrusted  with 
the  papers.  Hence  arise  many  cases  where  apparently  injustice  must 
be  done  to  Assurer  or  Assured.  Either  the  Assurer  finds  himself 
saddled  with  a  loss  against  which  he  believed  himself  insured,  or 
the  Underwriter  pays  one  which  was  not  considered  in  the 
premium. 

Much  loss  is  occasioned  to  the  mercantile  community  and  to 
the  country  at  large,  and  much  valuable  time  is  worse  than  wasted 
through  business  being  impeded  by  misunderstandings  and  irritated 
feelings. 

A  still  more  crying  evil  resulting  from  the  present  uncertainty 
of  law  and  custom,  is  the  opening  which  it  leaves  for  every  sort  of 
abuse.  Attempts  are  daily  being  made  to  introduce  charges  of  the 
most  outrageous  description,  which  do  not  even  go  into  the  pocket 
of  the  Shipowner,  but  which  he  feels  himself  lielpless  to  resist  from 
want  of  a  law  to  appeal  to  ;  and  ho  naturally  considers  himself 
hardly  ust'd  should  charges  which  ho  himself  has  paid  be  refused 
by  his  Underwriters,  tliough  these  last  are  obliged  to  refuse  in 
justice  to  themselves  and  to  prevent  the  innovation  becoming  a 
precedent. 

'r\\i'  evils  of  such  a  state  ef  tilings  are  notorious  and  unquestioned, 
tliougli  it  niav  be  doubted  wli'  flier  ni;iiiy  which  are  distinctly  trace- 


INTERNATIONAL   LAW   OF   GENERAL    AVERAGE.  :j 

able  to  it,  and  are  tliereforo  removable,  are  clearly  realised  as  pro- 
ceeding from  this  source,  i'robably  the  chief  reason  which  has 
hitherto  prevented  any  general  movement  in  favour  of  this  reform, 
is  an  exaggerated  estimate  of  the  difficulties  in  the  way  of  carrying 
it  out.  The  difficulties  are  no  doubt  considerable,  but  they  are  far 
from  being  insuperable,  and  the  importance  of  the  end  amply 
justifies  an  attempt  to  grapple  with  them. 

Both  the  Assured  and  the  Underwriter  are  interested  in  placing 
their  mutual  relations  upon  a  footing  which  would  effect  a  saving 
of  time  and  temper,  and  would  secure  them  against  the  annoying 
pecuniary  loss  to  which  they  are  at  present  exposed.  It  is  not  of 
so  much  importance  how  the  disputed  points  of  General  Average  are 
settled,  as  that  they  should  be  settled.  Most  of  the  questions  are 
in  the  end  merely  matters  of  account  between  one  set  of  Under- 
writers and  another,  and  it  would  make  little  difference  to  any 
Underwriter  upon  which  interest  it  might  be  determined  the  charge 
should  fall.  It  is  true  that  there  are  points,  such  as  the  allowance 
of  wages  and  provisions  in  a  port  of  refuge,  which  would  raise 
questions  between  Shipowner  and  Underwriter,  but  for  the  sake  of 
both  it  is  to  the  last  degree  desirable  that  these  should  not  be 
left  as  a  bone  of  contention  between  Assurer  and  Assured,  as 
they  are  at  present,  c.^.,  when  goods  to  America  are  insured  in 
England. 

The  evils  of  the  present  system  have  already  caused  much 
dissatisfaction  in  America  as  well  as  in  this  country,  and  will 
become  more  and  more  intolerable  as  the  commerce  of  the  world 
increases,  which  it  seems  likely  to  do  with  a  rapidity  hitherto  un- 
exampled. The  time  then  would  seem  to  have  come,  when  an 
attempt  should  be  made  to  remove  this  most  unnecessary  element 
of  irritation  between  Assured  and  Underwriter. 

In  the  hope  of  coming  to  an  understanding  upon  this  question, 
the  Council  of  the  National  Association  for  the  Promotion  of  Social 
Science  have  determined  that  it  shall  be  brought  forward  for  dis- 
cussion at  their  next  meeting  at  Glasgow  on  Monday.  September 
24  next,  and  following  days;  and  we  earnestly  trust  that  yon  will 
find  it  in  5-our  power  to  send  representatives  of  your  body  to  that 
meeting,  as  it  is  very  desirable  that  delegates  from  tho  commercial 

B  2 


4  MARITIME   LEGISLATION. 

bodies  in  different  parts  of  the  world  which  are  chiefly  interested 

should  be  present. 

We  are,  Gentlemen, 

Your  obedient  Servants, 

Brougham  &  Vaux,  President  of  the  Council^    National  Association 

^.-^   T-r  ^  1  CI  >      FOR  THE  Promotion 

George  W.  Hastings,  General  Secretary,         j       q^  Social  Science. 

Duncan  Dunbar,  Chairman  of  the  General  Shipowners^  Society,  London. 

Thomas  Baring,  Chairman  of  Lloyd's,  London. 

William  Wilson  Saunders,  Chairman  of  the  Association  for  the 
Protcctiun  of  Commercial  Interests,  &c.,  London. 

W.  J.  Tomlinson,  Chairman  of  tJte  Chamber  of  Comtnerce,  Liverjjool. 

F.  A.  Clint,  Deputy-Chairman  of  the  Shipowners'  Association,  Liverpool. 

Charles  Langton,  Chairman  of  the  Underwriters'  Association,  Liverpool. 

William  M.  Moss,  Chairman  of  the  Association  for  the  Protection  of 
Commercial  Interests,  &c.,  Liverpool. 

Allan  Gilmore,  Chairman  of  the  Shipowners'  Association,  Glasgow. 

William  P.  Paton,  Chairman  of  the  Chamber  of  Commerce  and  Manu- 
factures, Glasgow. 

Henry  J.  Atkinson,  Chairman  of  the  Shipiping  Committee  of  the  Hull 
Chamber  of  Commerce  and  Shipping, 

William  Brown  Atkinson  &,  Co.,  Managers  of  the  Humber  and  Ihdl 
Mufucd  Insurance  Association. 

John  Shute,  Chairman  of  the  Chamber  of  Commerce,  Bristol. 

Xow,  before  entering  upon  what  arose  out  of  this  cir- 
cular, it  may  be  expedient  to  remind  my  readers  that  the 
whole  legislation  on  General  Average  is  based  upon  a  sen- 
tence in  the  Ehodian  law  (91G  B.C.)  which  runs  as  follows: 
'If  goods  are  thrown  overboard  to  lighten  a  ship,  that  which 
lias  been  given  for  all  shall  be  replaced  by  the  contribu- 
tion of  all.' 

This  maxim  found  its  way  into  the  Eoman  civil  law 
(Dig.  lib.  14,  Tib.  2,  Fr.  1),  and  from  thence,  in  nearly 
identical  expressions,  into  the  legislation  of  all  the  mari- 
time nations  of  the  world. 

Il  can,  ihcfcfore,  Ije  scarcely  a  inallcr  of  sui-|)ris('  that 
111  process  of  lime,  measured  by  c(mi1  iiries,  uianifohl  con- 
(•hi>ioiis  were  (h'awii  IVoiii  llie  eiiaclmeiils  so  [)i'()iuulgated 
1)\-  llie  p;irlies  wlio  were  entrusted  witii  the  a(hniHistraiion 


IJ^TERNATIONAL   LAW   OF   GENERAL    AVERAGE.  5 

of  the  law  of  General  Average  in  the  various  cases  which 
arose  under  diflerent  jurisdictions,  so  that  when  a  com- 
parative table  of  the  laws  and  principles  of  General  Average 
as  actually  administered  was  drawn  up,  a  picture  presented 
itself,  for  which  even  those  most  interested  in  the  matter 
were  scarcely  prepai'cd. 

The  divergent  rules  which  arose  have  been  so  elaborately 
explained  in  Mr.  Lowndes's  work,  above  referred  to,  that 
they  need  not  be  recapitulated  here,  but  I  may  at  once 
refer  to  the  proceedings  of  the  Glasgow  Congress  and 
state  that,  a  few  days  before  its  assembling,  the  following 
memorandum  was  issued  : — 

The  adjustment  of  a  General  Average  is  governed  by  the  laws 
and  customs  of  the  State  in  which  it  is  adjusted.  The  laws  and 
customs  of  different  States  vary  materially,  and  that  which  is 
General  Average  in  one  country  is  not  General  Average  in  another. 
It  is  admitted  that  this  is  a  great  practical  grievance,  and  the 
object  of  this  meeting  is  to  put  an  end  to  it. 

The  following  are  the  principal  points  on  which  differences 
exist : — 

1.  Damage  done  to  ship  and  cargo  by  voluntary  stranding. 

2.  Damage  done  to  ship  and  cargo  in  extinguishing  a  fire. 

3.  Ohafage  and  breakage  of  cargo  after  jettison. 

4'.  Damage  done  to  cargo  by  discharging  it  at  a  port  of  refuge. 

5.  Cutting  away  the  wreck  of  masts  accidentally  carried  away. 

C.  Expenses  of  warehouse  rent  on  cargo,  re-shipping  it,  and 
outward  port  charges,  at  a  port  of  refuge,  when  the 
original  ship  carries  on  the  cargo  from  that  port. 

7.  Carrying  a  press  of  sail. 

8.  Wages  and  provisions  for  the  crew  during  the  delay  caused 

by  putting  into  port. 

9.  Contributing  values  of  ship,  freight,  and  cargo. 

The  opinion  of  the  meeting  ^^'ill  be  taken  on  each  of  tliese 
points  : — 

Lst.  As  to  the  principle  wliich  should  govern  it — i.e.  whether 


«  MARITIME   LEGISLATION. 

the  loss  is,  or  is  not,  in  principle,  allowable  in  General 
Average. 
2ucl.  As    to    the    expediency  of  adopting  a  practical    rule  to 
modify  or  prevent  abuse  of  that  principle. 

All  papers  to  be  read  at  the  meetings  on  this  subject  must  be 
lodged  with  the  secret-.iry,  at  Glasgow,  on  or  before  Saturday, 
September  22.  The  reading  of  no  paper  must  occupy  more  than 
fifteen  minutes. 

After  all  the  papers  have  been  read,  a  discussion  will  follow,  in 
which  every  one  may  join.  The  opinion  of  the  meeting  will  then 
be  taken  on  each  point,  and  measures  will  afterwards  be  adopted 
to  carry  out  in  practice  the  conclusions  arrived  at. 

Geo.  W.  Hastings,  General  Secretary. 

Thereupon  Lord  Brougliam  opened,  on  September  25, 
18G0,  tlie  first  meetino;  bv  callini,^  upon 

Mr.  G.  "W.  Hastings,  the  general  secretary  of  the  Association, 
who  said  he  thought  the  best  Avay  to  open  the  discussion  would  be 
for  him  to  state  in  a  few  words  how  the  movement  had  originated. 
The  council  of  the  Association  was  applied  to  in  the  early  portion 
of  the  present  year  by  several  important  commercial  bodies,  includ- 
ing Lloyd's  in  London  and  the  Underwriters'  Association  of  Liver- 
pool, to  take  up  the  im]3ortant  question  of  international  General 
Average,  and,  through  the  means  of  this  Association  at  its  meetings 
in  Glasgow,  to  have  a  discussion  on  its  principles,  in  order  that 
some  uniform  system  might  be  arrived  at.  The  council  accordingly 
issued  circulars  to  the  different  commercial  bodies  of  this  country, 
and  also  to  many  parts  of  America  and  the  continent  of  Europe.  A 
considerable  number  of  answers  had  been  received  to  that  circular 
;ind  a  lai-gc  uuinbcr  of  foreign  delegates  were  present  prepared  to 
discuss  the  several  questions.  Li  order  to  confiinMlu' discussion  to 
certain  definite  points  they  liad  ])i'epared  a  short  statement  of  nine 
points,  which,  as  it  seemed  to  liini,  were  tlie  princi]);il  iioints  on 
which  tlie  discussion  turned.  And  hiiving  snid  this  much  he  would 
now  SMgge.'^t  that  .Mr.  I'liili))  ]l;il  hlionc.  t  he  honoi'aiy  secretai'V  of 
1  his  UKM'I  iiiii-.  a]id  \\  ho  had  taken  ^(•|•\■  Lireat  intei^'sl  in  t  he  (luesl  ion. 


IM'iaiNATlONAL    LAW    OF   GENKKAL    AVKIIAGK.  7- 

and  to  whom  tlicy  wei'c  indebted  ibr  the  discharge  of  many  labori(jus 
duties  in  connection  with  the  subject,  should  read  to  the  meeting  a 
statement  of  the  question  ;  and  after  that  the  different  members, 
foreign  and  English,  might  give  their  opinions  on  the  several  ques- 
tions, in  the  hope  that  some  tangibk^  results  might  be  arrived  at. 

Mr.  p.  H.  Ratiiijoxe  then  read  the  following  stateinent :  We  are 
brought  here  to-day  by  the  conviction  that  the  differences  of  General 
Average  are  a  serious  detriment  to  the  commerce  of  the  country, 
entailing  on  those  who  are  interested  in  it  great  pecuniary  loss,  and 
that  which  is  worse  in  mercantile  transactions,  continual  disputes. 
For  instance,  w^hen  a  ship  sails  from  Now  Orleans  for  Liverpool 
with  a  cargo  of  cotton,  and  on  her  passage  meets  with  an  accident 
which  obliges  her  to  put  into  a  port  of  refuge  to  repair  the  injuries 
she  has  sustained,  and  at  that  port  her  cargo  is  discharged  in  order 
that  she  may  be  repaired,  after  she  is  repaired  her  cargo  is  re- 
shipped,  she  proceeds  on  her  voyage,  and  reaches  her  destination. 
Any  mercantile  man  would  expect  that  the  General  Average  re- 
sulting from  such  simple  and  everyday  facts  would  be  the  same 
wherever  the  average  might  be  adjusted;  but  1  am  informed  that 
that  average  adjusted  in  the  United  States  might  be  three  times 
as  great  as  it  would  have  been  if  it  had  been  adjusted  in  the  United 
Kingdom.  Differences  such  as  these— and  their  name  is  legion — 
give  rise  to  constant  disputes  and  feelings  of  injustice.  A  strong 
feeling  has  existed  for  a  long  time  amongst  commercial  men  that 
such  a  state  of  thing-s  ouoht  not  to  be  allowed  to  continue — that 
transactions  between  men  of  different  nations  (which  General 
Avei'ages  are  in  most  cases)  should  not  be  governed  by  the  local 
laws  or  customs  of  the  port  of  shipment,  the  port  of  destination, 
or  the  place  of  residence  of  the  underwriter — tliat  international 
or  general  maritime  law's  and  customs  should  govern  such  subjects 
in  the  same  way  that  collisions  on  the  high  seas  are  determined  in 
our  Admii*alty  Court,  so  that  a  General  Average  under  any  given 
circumstances  should  be  the  same  in  all  countries.  The  ditfieulty 
has  been  how  to  bring  about  such  a  result.  Some  few  have  adopted 
practical  remedies  to  meet  the  present  grievance  in  our  own  parti- 
cular cases,  but  this  is  only  a  partial  and  exceptional  remedy.  The 
generality  are  still  daily  sufferers,  and  the  evil  has  become  so  great 


8  MATilTLME   LEGISLATION. 

witli  the  great  increase  of  commerce,  that  application  was  made 
to  this  society  to  take  up  this  subject  and  find  a  remedy.  As 
the  subject  itself  was  of  such  great  importance  to  a  mercantile 
nation  like  ours,  and  the  interests  involved  so  vast,  we  did  not 
hesitate  to  accede  to  the  request,  and  the  result  is  this  meeting. 
On  the  end  in  view,  viz.  uniformity  in  the  adjustment  of  General 
Average,  we  are  not  hampered  with  some  of  those  difficulties  which 
embarrass  other  questions,  for  it  is  admitted  that  there  ought  to  be 
uniformity.  We  have,  therefore,  to  consider  only  how  we  can 
practically  accomplish  it.  When  the  present  movement  was  first 
suggested  a  general  revision  of  the  principles  which  should  govern 
the  adjustment  of  General  Average  was  contemplated,  and  it  was 
argued,  and  with  much  reason,  that  if  we  could  agree  on  the  prin- 
ciples which  ought  to  govern  the  adjustment  of  General  Average 
we  should  have  no  difficulty  in  agi*eeing  to  act  on  these  principles, 
and  thus  uniformity  in  practice  would  be  obtained.  The  improba- 
bility of  our  all  agreeing  on  these  principles,  in  addition  to  other 
considerations,  rendered  it  unadvisable  to  start  upon  that  plan.  It 
was  then  suggested  that  the  attention  of  the  meeting  should  be 
devoted  solely  to  the  formation  of  machinery  for  obtaining  here- 
after uniformity  on  any  disputed  point — i.e.  to  the  formation  of  a 
court  of  appeal  for  all  nations,  to  which  all  doubtful  points  should 
be  submitted,  and  to  whose  decrees  all  nations  should  bow.  This 
plan  also  has  many  arguments  to  recommend  it,  but  it  would  involve 
indefinite  delay  before  any  practical  results  could  be  obtained,  while 
it  was  felt  that  it  was  very  desirable  to  obtain  an  immediate  and  prac- 
tical remedy  for  the  greatest  of  the  existing  evils.  We  were,  there- 
fore, induced,  in  the  first  instance,  to  make  an  attempt  to  procure  an 
ijjimediute  decision  on  the  points  of  the  greatest  and  most  pressing 
practical  imjioi'taucc.  'J'iiis  coui'se  will  by  no  means  preclude  the 
consideration  of  t\n'.  principles  which  ought  to  govern  the  subject, 
and  naturally  leads  us  to  the  discussion  of  the  second,  viz.  the  con- 
sideration  of  the  exi)edi('ncy  and  practicability  of  forming  a  court 
of  !ij)p('al  for  our  govcruDiciit  (in  :ill  other  (|Ufslioiis  which  niay  be 
ill  (loiil>t()r  disputed.  It  is  not  probable  that  we  shall  be  unani- 
mous on  the  abstract  correctness  of  tlie  jirinciples  which  ought  to 
goveiMi  any  one  of  the  points  o\cn  now  before  us,  still  less  on  the 


INTERNATIONAL  LAW   OF   GENERAL   AVERAGE.  9 

practical  rules  which  some  may  think  it  expedient  to  adopt  to  re- 
strict or  modify  those  principles.  We  are  here  from  all  parts 
of  the  world.  Each  country  will  naturally  be  favourable  to  its  own 
customs  and  principles  to  w^hich  it  is  accustomed.  Each  of  us  will, 
therefore,  be  obliged  to  modify  or  abandon  his  own  peculiar  views 
in  deference  to  those  of  the  majority  if  we  are  to  arrive  at  a  prac- 
tical result.  Before  we  proceed  to  discuss  the  point  before  us,  or 
even  to  read  papers,  we  should  consult  and  perhaps  decide  on  the 
mode  in  which  we  are  to  arrive  at  the  opinion  of  the  meeting  as  a 
hodi/,  and  after  the  points  before  us  have  been  discussed,  we  must 
consider  wluit  available  machinery  can  be  framed  for  carrying  out 
this  opinion  in  practice  and  for  rectifying  hereafter  other  difficult, 
doubtful,  or  disputable  points  not  included  in  our  present  pro- 
gramme. If  we  were  all  representatives  with  full  power  to  bind 
our  constituents,  or  even  if  all  places  were  represented  here  to-day, 
we  might  perhaps  devise  such  a  plan,  and  carry  it  out  in  practice 
at  once,  but  many  of  us  are  only  present  on  our  own  account,  al- 
though deeply  interested  in  the  subject  no  doubt,  and  from  our 
position  capable  of  influencing  others.  We  must  therefore  submit 
our  plans  to  the  different  mercantile  communities  before  they  either 
can  or  ought  to  be  carried  out  in  practice.  This  is  a  difficulty 
which  calls  for  our  attention.  I  have  purposely  abstained  from 
commenting  on  any  of  the  nine  points  to  discuss  which  we  have 
met  here  to-day,  as  it  would  be  premature  before  the  papers  are 
read.  I  will,  with  these  few  observations,  leave  them  in  your 
hands,  adding  only  on  the  part  of  this  country  that  in  which  I  am 
sure  all  Englishmen  will  agree — viz.  that  we  feel  deeply  indebted 
to  all  those  gentlemen  who  have  crossed  the  seas,  at  so  much  per- 
sonal inconvenience,  for  the  purpose  of  attending  here  to-day,  to 
promote  unity  amongst  nations  on  this  great  mercantile  question. 

Mr.  Rathbone  then  said  :  I  think  perhaps  it  will  be  desirable 
to  mention  the  course  w^e  propose  to  adopt.  There  are  eight  papers 
to  be  read — they  are  all  very  short — all  to  the  point,  which  is  not 
always  the  case,  and,  therefore,  I  think,  perhaps,  if  my  Lord 
Brougham  agrees,  that  it  will  be  better  to  read  these  papers  first. 
I  am  sorry  to  say  w^e  have  no  paper  from  America,  but  I  hope  the 
delegates  from  America  will  say  a  few  words  after  all  the  papers 


10  MARITIME   LEGISLATION. 

have  been  read.  Perhaps  it  will  be  best  at  once  to  go  to  business 
upon  the  resolutions  after  reading  the  papers,  and  after  we  have 
heard  the  opinion  fi'om  America.  I  think  almost  every  other 
country  has  sent  in  its  opinions  in  writing. 

The  Chairman.  I  think  we  have  nothing  from  France. 

Mr.  Rathbone.  I  am  sorry  to  say  that,  though  the  Association 
of  Underwriters  in  Paris  write  most  cordially,  wishing  us  every 
success,  the  gentleman  by  whom  they  wished  to  be  represented 
has  unfortunately  been  prevented  attending,  by  business. 

The  Chairman.  ^A'hen  you  talked  of  a  court  of  appeal,  did 
you  intend  it  to  be  a  court  of  appeal  in  General  Average,  or  on  all 
mercantile  matters  ? 

Me.  Hathbone.  A  general  court  of  a,ppeal,  of  which  General 
Average  would  form  a  part. 

The  following  papers  were  then  read : — 

Mr.  William  Richards  (of  London)  :  Within  the  brief  space 
of  time  permitted  to  us  after  receiving  intimation  of  the  course 
intended  to  be  followed  at  the  International  Congress  for  the  pro- 
motion of  uniformity  in  the  adjustment  of  General  Average,  to  be 
held  at  Glasgow  on  September  25,  1860,  it  is  impossible  to  enter 
upon  the  suljject  with  the  careful  and  mature  consideration  which 
it  requires. 

We  can,  therefore,  only  offer  a  few  cursory  reflections  upon  the 
general  question. 

Attention  has  frequently  been  drawn  to  the  diversity  of  practice 
in  the  treatment  of  questions  relating  to  General  Average.  From 
the  remarks  of  Chief  Justice  Abbott,^  and  of  Chief  Justice  Gibbs, 
in  Taylor  v.  Curtis,^  we  learn  that,  although  all  the  commercial 
states  of  Europe  have  adopted  the  rule  as  to  General  Avernge, 
coritril)ii1i(.n  being  made  by  all  parties  concerned  in  a  sea  adven- 
ture towards  extraordinary  exjX'nses  or  losses,  voluntarily  incurred 
by  one  or  more  for  tlie  benefit  of  all — each  of  these  states  pro- 
feHsing  in  follow  llie  IJJiodiaii  law — yet  they  often  differ  from  each 
other;  tliat  foreign  jurists  liave  oftt-'ii  ni;i<le  very  different  connneiifs 

'  5th  edition  oi  Abbott  on  SJiljyjnui/,  ji.  ."Ml*. 

'-'  Ilildyard's  edition  of  I'arltc  mi  InHunnicc.  p.  '2H'i. 


lliTTERNATIONAL   LAW   OF   GENERAL   AVERAGE.  11 

upon  that  law,  and  that  no  priu(ii)le  of  maritime  law  has  been 
followed  by  more  variations  in  practice. 

More  than  a  century  ago  strenuous  attempts  were  made  to  have 
the  Marine  Insurance  law  of  this  country  reduced  to  a  code  as  in 
many  foreign  states.  The  Legislature,  however,  have  considered 
it  better  to  avoid  making  positive  enactments. 

Marshall,  in  his  preliminary  discourse,'  considers  that  it  Avould 
be  extremely  difficult,  if  not  wholly  impracticable,  to  make  positive 
laws  to  suit  every  case,  and  doubts  whether,  if  such  were  made, 
they  would  be  found  to  answer  the  purpose  of  preventing  litiga- 
tion ;  and  the  same  writer  maintains  that,  in  consequence  of  the 
absence  of  any  code,  the  practice  of  insurance  in  England  had 
been  in  his  time  more  conformable  to  principles  and  the  usage  of 
trade  than  that  of  foreign  nations. 

The  present  movement  has  for  its  intention  to  assimilate  the 
General  Average  principles  and  practice  of  this  and  other  countries, 
and  thus  to  modify  or  put  an  end  to  the  differences  which  exist 
between  the  laws  and  customs  of  different  states  in  relation  to 
General  Average. 

The  mode  adopted  by  the  Association  to  obtain  this  desirable 
result  is  to  a  certain  extent  in  accordance  with  the  views  of  the 
late  Mr.  Stevens,  the  well-known  writer  on  Average,  who  con- 
sidered that  the  object  of  clearing  up  the  uncertainty  existing  on 
many  points  would  be  most  readily  attained  by  men  of  experience 
communicating  their  knowledge  to  the  world,  and  that  repeated 
examination  and  discussion  of  the  practice  of  insurance  (and  of 
average  as  arising  out  of  it)  would  alone  fix  it  on  solid  principles, 
and  secure  for  them  that  universal  assent  which  would  probably 
never  be  yielded  to  the  deliberations  of  any  particular  body  of 
men. 

In  the  case  of  Birkley  r.  Presgrove,^  General  Average  was 
defined  to  be  '  all  loss  which  arises  in  consequence  of  extraordinary 
sacrifices,  or  expenses  incurred  for  the  preservation  of  ship  and 
cargo.'  The  laws  of  foreign  countries  seem  to  recognise  the  same 
general  principle  as  forming  the  basis  of  General  Average.  The 
question  may  therefore  be  asked,  whence  does  such  diversity  arise 

*   Treatise  on  Insurance.     London,  1808.  '  1  Eart.  220. 


12  MARITIME   LEGISLATION. 

in  the  practice  of  different  countries  ?  No  one  will  deny  that  a 
sacrifice  made  for  the  preservation  of  the  lives  and  property  at 
stake  is  General  Average. 

Mr.  Benecke  with  justice  says :  '  The  consequences  deduced  by 
legislators  and  commentators  from  this  apparently  simple  rule  differ 
materially  from  each  other,  and  this  is  not  surprising  if  we  con- 
sider in  what  different  senses  the  words  sacrijice  and  preservation 
may  be  taken.' 

The  courts  of  law  in  England  and  America  mutually  regard 
the  decisions  in  both  countries  on  the  subject  of  General  Average 
with  the  highest  respect,  and  the  leading  writers  on  General 
Average  in  each  country  give  the  gi-eatest  weight  and  considera- 
tion to  the  reasoning  of  those  in  the  other.  Yet,  on  some  of  the 
points  proposed  for  discussion  at  the  present  meeting,  the  practice 
of  the  two  countries  is  at  variance,  and  the  decisions  and  opinions 
of  the  greatest  jurists  have  been  conflicting. 

If  we  refer  to  cases  in  our  own  courts  we  find  that  a  leading 
principle  is  very  frequently  not  considered  as  law  until  it  has 
undergone  discussion  in  more  than  one  court,  or  has  been  sub- 
mitted by  appeal  to  the  House  of  Lords.  It  is  no  wonder,  then, 
that  difficulties  should  arise  in  determining  the  construction  to  be 
put  upon  the  principles  referred  to.  And  many  cases  of  average 
arise  in  the  course  of  practice  which  require  close  and  careful 
investigation  before  a  person  well  experienced  in  the  study  and 
practice  of  General  Average  can  determine  the  principle  which 
directly  bears  upon  the  point  at  issue.  Although  the  adoption  of 
the  broad  principles  of  General  Average,  as  laid  down  in  the  case 
referred  to  above,  is  universal,  the  limit  or  extension  of  these 
principles  varies  in  different  countries  to  a  very  considerable 
exti'iit,  and  it  will  be  easily  understood  Ihat  to  this  cause  is 
attributable  the  great  diversity  in  praclice.  The  practice  as 
established  in  America  allows  in  General  Average  the  indirect 
conscfjuences  of  a  General  Average  act,  wliile  the  practice  of  this 
count  ry  restricts  sucli  allowance  to  the  dii'cct  and  imtiu'diatc  con- 
sequences of  such  act.  If  we  take  the  case  of  a  mast  cut  away 
for  the  general  preservation,  wo  find  the  mast  with  yards,  sails, 
rigging,  A-c,  admitted  as  (Jeneral  Avemge   in    liotli   count ries,  and 


INTERNATIONAL  LAW    OF  GENERAL   AVERAGE.  13 

if  tho  ship  has  to  bear  up  for  a  port  of  refuge  to  replace  these 
losses,  the  wages  aud  provisions  of  the  crew  from  the  time  the 
vessel  bore  up  till  the  repairs  were  effected  would,  in  America,  be 
chargeable  in  General  Average,  while  in  this  country  they  would 
be  placed  to  account  of  owners  of  the  ship. 

Again,  if  a  ship,  having  been  compelled  by  sea  peril  to  put 
into  a  port  of  refuge,  is  obliged  to  unload  her  cargo  to  repair 
damage,  the  American  practice  allows  in  General  Average  the 
whole  of  the  expense  of  unloading,  warehouse  rent,  and  reloading 
the  cargo,  as  well  as  the  wages  and  provisions  of  the  crew  ;  while 
the  English  practice  charges  in  General  Average  the  expense  of 
unloading  only ;  to  the  cargo  warehouse  rent ;  and  to  the  freight 
the  expenses  of  reloading  and  outward  pilotage,  &c. 

These  two  instances  may  serve  to  illustrate,  in  the  case  of  the 
American  practice,  the  extension  allowed  and,  in  that  of  England, 
the  limit  put  upon  the  general  principle  admitted  in  common  by 
both  countries. 

In  the  time  of  Lord  Mansfield,  Mr.  Millar,  in  the  introduction 
to  his  able  Treatise  on  Insurance,'  says :  '  The  Trade  of  England 
has  of  late  been  so  extensive  and  various  as  to  increase,  to  a  very 
great  degree,  the  demand  for  insurance,  and  to  bring  under  dis- 
cussion a  multiplicity  of  curious  and  interesting  points.'  This 
remark  is  still  more  applicable  to  the  present  day.  Cases  frequently 
arise  which  illustrate  the  accuracy  or  fallacy  of  admitted  principles 
and  usages,  and  although  the  learning  and  discrimination  of  the 
judges  in  the  courts  of  law,  and  the  researches  of  the  writers  of 
authority  on  this  branch  of  the  law,  combined  with  the  practical 
experience  of  those  actually  engaged  in  the  business  of  insurance, 
have  been  progressively  establishing  fixed  principles  or  usages, 
casualties  nevertheless  sometimes  occur  under  circumstances  which 
render  them  difficult  of  application  to  any  recognised  standard; 
and  it  is  probable,  therefore,  that  no  attempt  to  completely  assimi- 
late the  practice  will  succeed. 

We  may  instance  the  case  of  voluntary  stranding,  the  differ- 
ence of  opinion  which  exists  on  this  subject  being  a  fruitful  source 
of  complaint. 

'  Edinburgh,  1787. 


14  MARITIME   LEGISLATION. 

Mr.  Benecke,  referring  to  voluntary  stranding,  writes  as  follows  : 
'  When  a  vessel  is  purposely  run  on  sliore  and  afterwards  got  off 
with  damage,  the  question  whether  the  repairs  of  such  damage  be- 
long to  General  or  Particular  Average,  depends  entirely  upon  the 
cu'cumstances  of  the  case.  If  the  situation  of  the  vessel  were  such 
as  to  admit  of  no  alternative,  so  that  without  running  her  ashore 
she  would  have  been  unavoidably  lost  and  that  measure  Avere  re- 
sorted to  for  the  purpose  of  saving  the  lives  or  liberty  of  the  crew, 
no  contribution  can  take  place,  because  nothing  in  fact  was  sacri- 
ficed. But  if  tbe  vessel  and  cargo  were  in  a  perilous,  but  not  a 
desperate  situation,  and  the  measure  of  running  her  ashore  was 
deliberately  adopted  as  best  calculated  to  save  the  ship  and  cargo, 
in  that  case  the  damage  sustained,  according  to  the  fundamental 
rules,  constitutes  a  claim  for  restitution.'  '  Suppose,'  continues 
Mr.  Benecke,  '  that  a  vessel  having  sprung  a  dangerous  leak,  the 
master,  in  order  to  save  a  valuable  cargo,  determines  to  run  her 
ashore  in  a  convenient  place,  although  he  might  possibly  have 
reached  a  harbour  with  a  leaky  vessel,  at  least  if  he  had  chosen  to 
throw  overboard  part  of  the  cargo  ;  or  suppose  him  to  adopt  the 
same  measure  if,  pursued  by  an  enemy,  he  considers  this  a  more 
efficacious  method  of  effecting  her  escape  than  lightening  the 
vessel  by  jettison.  Here  we  find  all  the  necessary  requisites  for 
constituting  a  general  contribution — imminent  danger,  a  voluntary 
determination,  and  a  sacrifice — and  I  can  see  no  reason  for  dis- 
tinguishing these  cases  from  that  of  goods  being  thrown  over- 
board, or  of  a  mast  being  cut  away  in  a  storm.' 

Mr.  Benecke,  in  the  above  observations,  appears  to  mark  out  a 
clear  line  of  distinction  in  the  treatment  of  claims  for  damage  arising 
out  of  volunta,ry  stranding.  We  may  remark  that,  in  the  endeavour 
to  assimilate  the  practice  of  General  Average  in  relation  to  the 
allowance  under  this  head  of  losses  sustained,  or  expenses  incurred, 
it  is  very  important  ihat  full  consideration  sliould  be  given  to  the 
basis  on  whicli  the  values  of  the  contributing  interests  should  be 
estaljlislied. 

Magent  says  :  'I'lio  valui^  of  llic  sliip  and  cm-go  to  contribute 
to  General  Average  is  flml  vnliic  wliicli  llicy  would  have  jiroduced 
net  for  ready  money,  had  they  belonged  tu  one  [jerson,  and  had  no 
sacrifice  been  made.' 


INTERNATIONAL  LAW  OF  G1':NKRAT.  AVERAGE.     15 

This  is  tlie  basis  adopted  by  the  practice  of  this  country,  in 
cases  where  the  average  is  adjusted  after  the  arrival  of  the  ship  at 
her  port  of  destination. 

By  the  practice  of  Hamburg  and  other  foreign  states,  any 
cargo  is  made  to  contribute  upon  the  invoice  value,  without  regard 
to  the  damage  it  may  luwe  sustained  during  the  voyage. 

This  practice,  considering  the  limited  value  usually  put  upon 
the  ship,  might  not,  when  the  cargo  arrives  in  good  order,  be 
found  to  entail  any  very  serious  hardship  on  the  owners  of  the 
vessel,  but  in  the  event  of  any  particular  shipment  becoming 
greatly  damaged  during  the  voyage,  such  goods  suffer  an  injustice 
by  being  forced  to  contribute  upon  a  value  which  does  not  exist, 
and  the  owners  of  the  same,  in  claiming  under  their  policies, 
frequently  become  involved  in  difficulty  and  controversy. 

In  referring  to  the  question  of  contributory  values,  we  have 
only  mentioned  one  point  out  of  many  which  appaars  to  require 
consideration. 

The  convenience  now  afforded  of  submitting  a  question  of 
principle  to  the  Judges,  upon  an  admitted  statement  of  facts, 
presents  a  means  of  gradually  establishing  a  uniform  system  in 
this  country,  where  established  mercantile  custom,  '  once  clearly 
ascertained  in  any  of  the  supreme  courts,  acquires  the  force  of 
law,  without  the  sanction  of  legislative  authority.'  ^ 

It  is  impossible,  in  the  few  minutes  allowed  for  the  reading  of 
a  paper,  to  touch  upon  the  important  matters  which  appear  in  the 
synopsis. 

M.  Theodore  Engels  (Chamber  of  Commerce,  Antwerp) : 
La  Chambre  de  Commerce  d'Anvers  a  refu  avec  beaucoup  de  satis- 
faction 1 'invitation  gracieuse  de  votre  Comite  de  venir  discuter  en 
commun,  les  mesures  a  prendre  dans  un  interet  general  a  toutes  les 
nations  maritimes,  des  reglements  qui  regiront  par  la  suite  une 
matiere  aussi  importante  que  celle  des  avaries  communes. 

EUe  sait  gre  a  I'Angleterre,  le  pays  du  progres  par  excellence 
et  des  idees  pratiques,  d'avoir  pris  cette  initiative  et  nous  a 
charges  d'etre  aupres  de  vous  I'interprete  de  ces  sentiments.  Yous 
trouverez,  en  notre  pays,  la  plus  grande  sympathie  et  un  appui 

'  Marshall,  21. 


]6  MARITLME   LEGISLATIUX. 

energique,  tant  de  la  part  du  gouverneraent  que  de  celle  du  com- 
merce, a  faire  prevaloir  les  mesiires  qu'uiie  discussion  generale  et 
approfondie  aura  fait  reconnaitre  comme  les  plus  pratiques  et  les 
plus  equitables. 

En  effet,  Messieurs,  en  presence  de  tous  les  progres  qui  se  font 
jour,  n"en  est-il  pas  un  des  plus  indispensables,  dans  linteret 
general,  que  les  repartitions  d'avaries  communes  subies  volontaire- 
ment  dans  un  moment  de  peril  commun,  se  fassent  sur  un  pied 
uniforme,  que  I'armateur,  le  negociant  et  I'assureur  de  toutes  les 
nations  saclient  cpielles  sont  les  lois  generales  qui  leur  sont  appli- 
cables  et  que,  n'importe  dans  quel  port  du  nionde  ou  son  navire  ou 
sa  marcliandise  arrive,  il  soit  traite  d'apres  des  bases  fixes  non 
sujettes  a  des  interpretations  arbitraires  ou  locales,  qui  donnent  lieu 
a  tout  moment  a  des  difierences  serieuses  et  regrettables  entre  lui 
et  ses  assureurs. 

La  Belgique,  Messieurs,  ancien  foyer  d'industrie  et  de  pros- 
perite  commerciale,  ne  reste  jamais  en  arriere  quand  il  s'agit 
d'inaugurer  une  innovation  heureuse.  Elle  apprecie  a  leur  juste 
valeur  les  nobles  efforts  que  sont  faits  dans  ce  but,  n'importe  d'oii 
ils  arrivent,  et  on  trouvera  toujours  en  elle  un  concours  loyal  et 
actif. 

Me.  Thomas  R.  Davison  (Average  Adjuster,  London)  :  If 
tlie  section  of  the  National  Association,  wliich  lias  originated  this 
movement,  can  succeed  in  its  proposed  object,  the  result,  in  a  com- 
mercial point  of  view,  will  be,  perhaps,  more  important  than  any 
subject  brought  under  the  notice  of  the  Association. 

The  discordant  practice  of  different  countries,  in  reference  to 
General  Average,  is  a  grievance  to  the  mercantile  community  at 
large. 

Some  mode  of  apportioning  General  Average  has  existed  since 
commerce  originated.  The  early  view  taken  of  making  a  division 
of  1h<'  losses  or  expenses  incurred  has  been,  that  as  an  accident 
has  happened,  in  which  the  entire  interests  of  the  ship,  freight, 
and  cargo  were  concerned,  the  charges  shoidd  be  distributed  over 
the  whole  according  to  their  respective  values,  without  any  attempt 
at  disciiminatiou. 

'J'his  practice  slill  [)revails  in  sonie  places,  where  probably  closer 


INTERNATIONAL  LAW  OF    GENERAL   AVERAGE.  17 

investigation  has  not  been  entered  upon,  and  in  others  it  has  been 
irreguhirly  varied,  without  establishing  any  other  principle :  my 
object  is  to  show  that  a  more  perfect  examination  of  the  subject 
would  tend  to  bring  about  the  agreement  sought  for. 

In  England  the  principles  of  General  Average  and  its  conse- 
quences have  been  a  complete  study  and,  among  those  who  follow 
it  as  a  profession,  there  is  no  difference  of  opinion  except  on  some 
few  inconsiderable  points ;  upon  great  questions  they  are  agreed. 

General  Average  rules  are  to  be  considered  without  reference 
to  Insurance  :  they  are  in  reality  a  common-sense  distribution  of 
such  losses  and  charges  as  belong  to  the  united  interest  included 
in  ship,  freight  and  cargo.  To  arrive  at  a  proper  understanding 
of  the  apportionment  of  the  losses  and  charges,  it  is  necessary  to 
look  to  the  exact  and  immediate  cause  of  them,  and  to  avoid  as 
much  as  possible  including  consequences.  For  this  purpose  I  will 
consider  No.  6,  of  the  designated  principal  points  on  which  differ- 
ences exist :  '  Expenses  of  warehouse  rent  on  cargo,  re-shipping  it, 
and  outward  port  charges  at  a  port  of  refuge,  when  the  original 
ship  carries  on  the  cargo  from  that  port.' 

In  many  countries  it  is  the  practice  to  put  the  cost  of  dis- 
charging cargo,  warehouse  rent  and  re-shipping  into  General 
Average,  thus  including  therein  the  direct  act  of  General  Average 
and  its  consequences  :  no  doubt  this  originated  in  the  before-de- 
scribed idea  that,  as  there  was  one  general  calamity,  each  interest 
should  take  its  share  according  to  its  value.  Our  custom,  the 
result  of  much  study  and  experience,  is  to  make  such  a  separation 
of  the  charges  as  will  make  them  apply  as  directly  as  possible 
to  the  respective  interests  for  which  they  are  incurred.  A  ship 
having  sustained  damage  has  sprung  a  leak,  and  it  is  requisite  to 
discharge  her  cargo  to  repair  ;  she  could  not  otlierwise  proceed  on 
her  voyage,  and  therefore  ship,  freight,  and  cargo  are  interested  in 
the  discharge,  and  the  expense  of  discharging  the  cargo  is  there- 
fore General  Average :  the  rent  of  the  warehouse  is  a  direct  charge 
upon  the  cargo  and  should  be  so  levied  :  it  is  a  consequence  of  the 
accident,  but  so  would  the  loss  of  the  cargo  be  if  it  were  burned 
in  the  warehouse,  and  I  am  not  aware  that  it  has  ever  been  pro- 
posed to  make  damage  in  warehouse  a  subject  of  General  Averao-e  ; 


18  MARITIME   LEGISLATION 

the  re-shipping  and  outward  charges  become  a  direct  charge  on 
the  freight :  the  owner  of  the  ship  took  in  his  cargo  originally  to 
earn  a  freight  and  must  take  it  in  again,  after  a  casualty,  to  enable 
him  to  take  it  to  its  destination  and  so  earn  his  freight. 

In  a  ease  of  accident  and  its  consequences,  every  interest  will 
incur  some  charges  peculiar  to  itself,  and  it  is  not  equitable  to 
throw  upon  the  general  interest  such  share  of  the  accident,  enabling 
thereby  the  proprietor  of  one  interest  to  escape  at  the  expense  of 
the  others.  The  effect  of  putting  the  charges  of  rent  and  re-ship- 
ping into  General  Average  is  that  the  ship,  having  paid  for  its  own 
particular  average  repairs  of  damage,  is  called  upon  to  contribute 
to  the  charges  belonging  to  cargo  and  freight,  which  pay  nothing 
towards  its  repairs,  and  it  might  easily  happen  that  a  ship  of  high 
value  having  a  bulky  cargo,  as  of  timber  or  coals,  might  have  to 
pay,  in  addition  to  her  own  repairs,  four-fifths  of  the  rent  and  cost 
of  re-shipping  of  the  cargo  to  the  ship's  detriment  and  the  advan- 
tage of  the  other  two  interests. 

In  reviewing  the  other  points  intended  for  consideration  I 
will  take  No.  1 .  '  Damage  done  to  ship  and  cargo  by  voluntary 
stranding.' 

This  cannot    be    taken   to    be   General  Average :  it  does  not 
contain  that  first  element  of  General  Average  which  is  the  volun- 
tary sacrifice  of  something  which,  being  itself  in  a  condition  of 
safety,  is    intentionally    destroyed    or    damaged    for   the    general 
preservation.     An  anchor  and  chain  by  which  a  ship  is  riding  in 
safety,  is  slipped  to  avoid  a  collision,  or  a  danger  of  driving  on 
shore ;  masts,  when  standing,  cut  away  for  the  same  cause  ;  cargo 
taken  out  of  the  hold  and  thrown  overboard  to  lighten  the  vessel — 
these  are  legitimate  subjects  of  General  Average ;  but  a  ship  pur- 
posely run  on  shore  is  to  prevent  her  sinking  :  before  this  were  done 
she  would  be  filling  with  water  and  be  actually  in  a  state  of  total 
loss :  there  could  bo  no  hope  of  saving  the  ship,  and  it  could  be 
done  only  in  reality  fur  a  saving  of  life,  the  intention  and  expecta- 
tion of  saving  the  ship  and  cargo  not  being  in  fact  contemplated. 
If  it  could  bo  assumed  1o  be  dlcinrul  Avci'iigc,  it   must  fail  a«  such 
for  its  own    uiiccrtaiiity  ;  tin-   \;ducs;iid   lobe  sacrificed  would  be 
unascertainable :  under  such  ciicuuislances,  a  ship  partially  filled 


INTERNATIONAL  LAW   OF    GENERAL   AVERAGE.  19 

with  water,  and  a  cargo  in  such  a  state  of  damage  could  not  be 
valued.  In  England,  therefore,  the  damage  to  ship  and  cargo  are 
treated  as  partial  loss  and  not  General  Average. 

No.  2.  '  Damage  done  to  ship  and  cargo  by  extinguishing  a 
fire.'  The  damage  to  ship  if  by  cutting  the  deck  is  voluntary  and 
clearly  visible,  and  its  repair  is  General  Average :  the  damage  by 
water  supposed  to  have  got  down  by  extinguishing  the  fire  is 
incidental  and  not  a  voluntary  act  and  is  treated  as  partial  loss. 

No.  3.  '  Chafing  and  breakage  of  cargo  after  jettison '  is  a 
consequence  and  not  a  voluntary  act,  and  we  make  it  partial  loss. 

No.  4.  '  Damage  done  to  cargo  by  discharging  at  a  port  of 
refuge.'  I  assume  this  to  mean  damage  sustained  in  the  act  of 
discharging,  which  is  General  Average. 

No.  5.  '  Cutting  away  wreck  of  masts  accidentally  carried  away.' 
Such  wreck  lying  in  the  water  is  already  lost,  and  is  cut  away  as  a 
nuisance,  and  is  not  General  Average. 

No,  7.  As  to  '  carrying  a  press  of  sail,'  I  presume  for  the  alleged 
purpose  of  keeping  off  a  lee  shore.  The  sails  are  doing  no  more 
than  the  duty  required  of  them,  and  their  being  damaged  is  not 
General  Average. 

No.  8.  '  Wages  and  provisions  of  the  crew  during  the  delay 
caused  by  putting  into  port '  are  not,  by  legal  decision,  recoverable 
in  General  Average  in  this  country.  The  allowance  of  these  charges 
in  General  Average  is  a  very  questionable  advantage  to  the  owner 
of  the  ship :  it  is  an  inducement  to  the  master  and  crew  to  go  into 
port  upon  slight  or  unnecessary  occasions,  and,  even  when  necessary, 
to  delay  their  departure ;  and  the  loss  to  the  owner  by  the  lengthen- 
ing of  his  voyage  is  not  compensated  by  his  crew  being  paid  their 
wages  and  board  during  detention.  If  it  be  no  advantage  to  the 
owner  of  the  ship  it  is  most  injurious  to  the  owner  of  the  cargo, 
whose  market  may  be  lost  in  addition  to  that  of  interest  on  his 
capital.  If  this  portion  of  the  system  of  General  Average  could 
be  generally  abandoned  it  would  be  a  boon  to  the  mercantile 
community. 

No.  9.  '  Contributing  values  of  ship,  freight,  and  cargo.'  The 
rule  in  many  places  is  to  take  half  the  value  of  the  ship  and  half  of 
the  freight,  taking  also  the  net  value  of  the  cargo.     There  is  an 

(;  2 


20  MARITIME   LEGISLATION. 

absence  of  any  established  principle  in  taking  half  the  value  of  the 
ship  and  the  full  net  value  of  the  cargo :  the  value  of  the  ship  is 
her  market  value,  less  the  repairs  of  her  damage,  and  the  freight  is 
the  freio-ht  due,  less  wages  and  charges,  and  that  of  cargo  should 
be  its  net  arrived  value. 

In  most  of  the  points  considered  above,  if  all  interests — ship, 
freio-ht,  and  cargo — were  insured,  the  result  might  be  of  no  import- 
ance to  the  proprietors  of  each  interest,  because  they  would  recover 
their  entire  loss  either  under  the  head  of  General  Average  or 
partial  charges  or  loss ;  but  as  it  will  frequently  occur  that  some 
will  be  only  partially,  or  not  insured  at  all,  it  is  as  essential  that 
an  equitable  mode  of  apportionment  should  be  adopted  as  a  unani- 
mous one.  If  the  warehouse  rent  of  the  cargo  and  charges  thereon, 
which  would  follow,  be  included  in  the  General  Average,  the  owner 
of  the  ship  uninsured  would  be  materially  prejudiced  for  the  benefit 
of  the  cargo ;  so  might  the  cargo  be  by  having  to  pay  its  share  of 
re-shipping  charges. 

For  these  reasons  I  am  of  opinion  that  in  any  apportionment 
of  the  charges  arising  out  of  a  general  casualty,  whether  those 
interested  be  insured  or  not,  a  separation  according  to  the  English 
custom  will  be  found  the  most  equitable. 

In  considering  the  whole  proposed  question  of  the  promotion  of 
uniformity  in  the  adjustment  of  General  Average  I  have  to  state 
that  in  my  experience  the  opportunity  has  been  afforded  me  of 
examining  the  General  Average  statements  of  perhaps  every  foreign 
country  where  such  documents  are  usually  made  up.  I  have  found 
statements  made  up  in  two  ports  of  the  same  country  differing 
entirely  and  materially.  1  have  found  in  one  city  of  most  extensive 
commerce  official  statements  made  up  on  the  most  opposite  prin- 
ciples. Throughout  the  whole  which  have  come  before  me  there 
appears  an  entire  absence  of  any  fixed  principle  and  certainly  there 
is  no  country  in  which  there  is  a  standard  to  which  the  general 
commercial  community  could  conform  with  any  advantage. 

Ilio  Knglish  practice  has  been  based  on  principles  adopted  after 
iinirli  study  and  ('xpcricnce,  ami  I  siiluiiil  (or  tlic  consideration  of 
those  whose  minds  iiave  been  directed  to  this  question  whether,  as 
a  whole,  this  may  not  be  the  best  system  to  use  as  a  guide  to  a 
general  uniformity. 


INTERNATIONAL   LAW    OF   GENERAL   AVERAGE.  il 

Dr.  N.  Rahusen  (Representative  of  tbe  Netherlands  Trading 
Company).  I  must  apologise  for  speaking  a  few  words,  in  a  lan- 
guage which  is  not  my  own,  before  the  discussions  on  the  various 
points  of  General  Average  are  opened  by  the  noble  lord,  our  illus- 
trious chairman. 

We  received  in  Holland,  with  great  interest,  the  invitation  of 
the  National  Society  for  the  Promotion  of  Social  Science,  to  meet 
at  a  congress  in  this  thriving  town  of  Scotland,  for  the  purpose  of 
discussing  the  system  of  General  Average.  I  was  appointed  by 
the  Netherlands  Trading  Society  to  be  its  representative.  The 
committee  of  shipowners  at  Amsterdam  also  desired  me  to  repre- 
sent its  interests.  The  object  aimed  at  is  to  bring  uniformity  into 
the  rules  which  regulate  the  statements  of  General  Average.  It 
cannot  be  denied  that  it  is  a  vast  project,  for  it  will  not  be  sufficient 
that  there  should  be  uniformity  in  the  statements  of  the  various 
seapoi'ts  of  one  country,  but  the  principles  upon  which  they  rely  must 
be  the  same  amongst  all  those  nations  which  have  a  share  in 
maritime  transactions.  If  now  we  consider  that  in  some  countries 
the  commercial  codes  have  fixed  the  principles  which  regulate 
General  Average,  that  those  principles  vary  in  the  respective  codes 
of  commercial  nations,  and  that  there  are  other  most  important 
countries,  as  England  and  the  United  States,  in  which  the  system 
of  General  Average  is  onl}-  ruled  by  what  is  called  custom  and  pre- 
cedents, I  believe  I  shall  not  have  said  too  much,  in  giving  my 
opinion,  that  the  project  is  a  vast  one,  and  surrounded  by  difficulties. 
We  may  never  forget  that  the  law  originates  from  the  habits  and 
the  history  of  nations,  and  that,  as  long  as  there  will  be  different 
nations,  these  nations  will  have  their  own  history,  their  own  law, 
their  own  application  of  science.  We  must  fear  that  the  legislative 
authorities  in  the  various  countries  will  not  instantly  accede  to  the 
rules  which  will  be  proposed  by  this  meeting. 

I  frankly  state  my  own  opinion  and  do  not  conceal  the  difficulties 
connected  with  the. subject.  But,  nevertheless,  I  may  congratulate 
this  Society  for  having  adopted  the  idea,  that  the  so  discrepant 
principles  of  General  Average  should  be  brought  into  discussion,  if 
I  look  around  me  and  see  in  this  congregation  all  those  eminent 
men,  and  discussion  will  certainly  be  profitable  to  science.    Various 


22  MARITIME   LEGISLATION. 

are  the  systems  adopted  in  General  Average,  but  truth  is  but  one, 
and  if  we  earnestly  and  without  prejudice  investigate  this  matter,  we 
must  come  nearer  to  the  truth,  we  must  come  nearer  to  the  object 
which  the  Committee  of  International  General  Average  has  in  view. 

Gentlemen,  one  of  the  Roman  emperors  being  asked  by  one  of 
his  pra^fecti  for  his  decision  in  a  case  of  stranding,  gave  this  re- 
markable reply,  which  is  preserved  in  the  digests :  '  I  surely  am 
the  governor  of  the  whole  world,  but  the  sea  has  its  oivn  law.' 
That  was  true  in  the  time  of  the  Roman  empire,  it  is  true  yet  in 
our  days.  For,  although  the  practice  and  codification  is  different, 
yet  in  fact  there  is  but  one  law  of  the  sea.  The  more  we  study 
that  law,  that  one  law  of  the  sea,  the  more  unanimous  we  will  be 
in  its  application,  and  if  the  result  of  our  meeting  is  perhaps  not  so 
immediate,  yet  the  seed  is  thrown  into  the  earth  and  the  fruit  will 
ripen. 

I  shall  be  most  happy  to  co-operate  in  your  noble  design. 

Mr.  J.  A.  W.  Harper  (Association  for  the  Protection  of 
Commercial  Interests,  London) :  Nearly  all  movements,  such  as 
the  one  in  agitation  on  the  subject  of  this  section,  have  to  encounter 
much  opposition  of  a  negative  kind— not  the  less  obstructive  that 
it  is  negative — the  opposition  of  apathy  and  indifference :  a  con- 
dition of  mind  which  is  formularised  in  the  expression,  '  Where's 
the  good  ? ' 

1  think  that  most  of  the  gentlemen  present  here  to-day  must 
have  become  very  familiar  with  that  question  lately.  So  far  as  I 
have  had  opportunities  of  forming  an  opinion,  in  the  short  space  of 
time  which  has  elapsed  since  I  was  first  called  upon  to  consider 
this  subject,  the  great  majority  of  persons  immediately  interested 
in  it  are  deeply  affected  with  this  moral  ague. 

The  underwriter  I  have  found  disposed  to  regard  it  in  this 
manner.  The  difficulties  occasioned  by  national  differences  in  the 
adjustment  of  averages  arc  only  additional  elements  of  risk :  to 
reduce  tlic  number  or  diminish  the  urgency  of  such  difficulties  is, 
in  effect,  only  to  diminish  the  elements  of  risk  ;  and  if  you  proceed 
far  in  doing  lliat,  you  will  ;ippr(iach  tlic  cxlincfion  of  all  i-isk — 
and  then,  he  asks,  wlmt  lias  become  cf  his  cniit?  A  register  of 
|»i"<'miums  and  a  fair  annniiil  of  rajiifal  will  be  the  sum  of  an  under- 


INTERNATIONAL   LAW   OF  GENERAL   AVERAGE.  2-i 

writer's  requisites.  At  present  he  must  have  an  extended  and  very 
various  knowledge,  and  is  compelled  to  exercise  an  intelligent 
vigilance :  that  knowledge  and  vigilance  raise  him  from  a  dull 
mechanical  tradesman  into  a  thinking  intellectual  speculator,  and 
he  lias  no  wish  at  all  to  descend  again  below  that  level ;  and  so  he 
looks  upon  your  proceedings,  to  say  the  best,  very  coldly.  He 
considers  also  his  pro  tits.  His  largest  profits  are  extracted  from 
the  fluctuations  of  risks,  which  such  difficulties  as  those  you 
propose  to  remove  give  rise  to. 

The  shipowner  is  disposed  to  regard  the  question  in  something 
like  the  same  manner.  Immediately  he  finds  himself  exposed  to  a 
new  risk,  such  as  that  arising  from  the  anomalies  of  average  adjust- 
ing, he  does  his  best  to  estimate  it  at  a  money  value,  and  he  covers 
it  by  an  addition  to  his  freight.  Or,  as  is  most  commonly  the  case, 
the  underwriter  relieves  him  of  the  trouble  of  computing  the  risk — 
he  estimates  it  for  him,  and  charges  it  upon  him  in  the  shape  of 
premium.  The  shipowner  pays  him  and  adds  the  amount  to  his 
freiorht.  He  cares  nothing  about  these  difficulties :  and  looks 
askance  at  your  proceedings. 

Andj^so  also  the  merchant.  He  covers  all  risks,  computed  in 
the  same  manner,  by  a  charge  against  his  profit,  or  by  a  premium 
paid  to  his  underwriter ;  and  in  either  case  he  raises  his  profit  by 
the  amount.  And  ho,  therefore,  also  makes  little  account  of  the 
discussions  you  are  entering  upon  to-day. 

Now  what  follows  naturally,  necessarily  from  these  plain  aspects 
of  the  question  ? 

I  have  heard  it  said  by  some,  whose  view  is  not  so  clear  as  that 
of  these  experienced  practical  men — this  is  an  underwriter's  ques- 
tion only.  Others  look  upon  it  as  a  shipowner's  question  ;  others 
again  as  a  merchant's.  I  venture  to  maintain  that  it  is  neither  one 
nor  the  other.  It  is  simply  a  consumers  question.  If  the  under- 
writt'r  increases  his  premium  to  meet  the  additional  risk  ;  if  the 
shipowner  adds  to  his  freight,  for  the  same  reason  ;  or  the  merchant 
to  his  profit ;  in  any  case,  he  who  ultimately  bears  the  burden  of 
the  impost  is  the  consumer.  The  increase  is  sure  to  find  its  way 
into  the  price  of  the  commodity,  and  the  buyer  to  be  tlu'  ultimate 
sufferer. 


24  MARITIME   LEGISLATION. 

This  consideration  should  divest  the  question  of  its  sectarian 
character,  and  elevate  it  to  the  importance  of  one  affecting  the 
whole  community  and  all  communities.  But,  regarded  in  its 
narrower  aspect,  if  it  be  but  regarded  in  a  comprehensive  manner, 
it  will  appear  a  question  nearly  affecting  each  man  in  his  craft — 
each  man  who  is  labouring  for  profit  in  the  consumer's  service. 
Cheapness  of  productions  stimulates  their  consumption,  enlarges 
the  area  of  the  operations  of  all  engaged  in  the  production,  relieves 
them  of  the  excessive  pressure  of  competition,  and  increases  the 
amount  of  their  gross  periodical  profits.  In  this  way,  although  it 
may  seem  to  the  underwriter,  the  shipowner,  and  the  merchant 
that,  so  long  as  the  purchaser  of  commodities  covers  all  their 
charges,  it  is  of  little  consequence  what  those  charges  are,  it  is 
yet  certain  that  in  the  end  they  will  all  find  their  account  in  any 
relief  which  accrues  immediately  to  the  consumer.  And  if  they 
admit  this,  they  will  soon  agree  with  us  that  differences  in  the  law 
of  General  Average  of  various  countries — inasmuch  as  they  involve 
several  risks,  some  certain,  others  indeterminate,  and  inasmuch  as 
those  risks  enhance  the  price  of  commodities — are  an  evil  which 
it  is  worth  an  effort  to  remove. 

But  the  only  one  weighty  objection  to  the  proceedings  of  this 
section  that  I  am  aware  of  is  this : — that  there  is  no  issue  to  your 
movement — that  there  can  be  no  practical  end  to  it  and  that  you 
are  beating  the  air.  It  is  an  objection  which  seems  to  have  a  sort 
of  parasitical  attachment  to  all  considerable  movements  There 
has  scarcely  been  any  change  of  importance  in  the  settled  condition 
of  things  which,  at  the  first  conception  of  it,  was  not  impossible. 
But  yet  the  objection  is  one  you  must  face,  for  it  is  a  real  and 
serious  one.  You  may  hope  to  effect  the  changes  you  look  for 
through  the  medium  of  the  Governments  of  the  principal  trading 
coiiiil  lies  :  in  tliut  case  you  must  contemplate  changes,  more  or 
less  considcriible,  in  tlic  mercantile  law  of  those  countries.  Tu 
order  to  appreciate  tlu^  difliculticss  you  would  have  to  surmount  to 
arrive  at  tliat,  you  luive  only  to  reflect  for  a  moment  njion  what 
you  must  do  ff)  ol)lain  any  alfeiMlion  in  youi'  own  law;  and 
of  course  you  contenijilate  changes  there.  'J'he  law  of  (u'lieral 
Average  in  Knglaiid   rests  on  the  decisions  of  some  of  the  ablest 


INTERNATIONAL   LAW   OF  GENERAL  AVERAGE.  25 

Judges  that  ever  adorned  the  Bench.  And,  whatever  difficulty 
you  might  have  to  struggle  with  here,  you  will  find  yourselves 
confronted  with  similar  ones  in  every  other  country. 

But  perhaps  you  hope  for  some  general  assent  on  the  part  of 
the  tradinof  communities  in  different  countries,  to  a  set  of  rules  to 
be  made  operative  by  clauses  of  contract  in  documents  of  trade, 
such  as  bills  of  landing.  The  special  obstacles  to  the  progress  of 
a  scheme  in  this  direction  will,  no  doubt,  be  pointed  out.  One  is 
prominent.  The  contracts  will  only  bind  the  parties  to  them. 
Suppose  an  adjuster,  employed  upon  the  statement  of  a  CJeneral 
Average,  should  find  that  half  the  bills  of  lading  contain  clauses 
binding  the  parties  to  them  to  the  rules  laid  down  in  the  new  code, 
and  the  other  half  do  not ;  and,  suppose  the  law  of  the  port  of 
discharge  differ  from  the  code — half  the  interests  would  require  an 
adjustment  according  to  our  principle,  the  other  half  according  to 
another.  "What  a  provision  for  confusion  we  have  here !  If  this 
prime  difficulty  can  in  any  way  be  surmounted — if  you  can  effect 
the  necessary  changes  in  the  law,  or  frame  a  machinery  for  super- 
seding the  law,  it  is  probable  that  you  will  accomplish  all  that  you 
desire,  and  will  confer  important  benefits  on  commerce. 

Suffer  me  to  refer,  in  conclusion,  to  one  or  two  cases  which  may 
illustrate  the  mischiefs  arising  from  w^ant  of  uniformity  in  the  laws 
of  average. 

A  Spanish  ship,  with  a  cargo  worth  200,000Z.,  puts  into  a  port 
of  refuge  a  day  or  two  after  putting  to  sea,  and  is  found  to  be 
rotten  and  wormed ;  the  owner  spends  8,000Z.  in  repairing  her, 
and  then,  having  a  fine  new  ship,  takes  on  his  cargo  to  a  Spanish 
colony.  There  the  General  Average  is  adjusted,  and  the  cargo 
contributes  to  the  repairs.  But  the  cargo  is  worth  200,000^. — the 
ship  about  5,000/. ;  so  that  the  cargo  pays  nearly  all.  When  the 
English  merchant  is  called  upon  to  make  this  magnificent  present 
there  is  some  heart-burning,  perhaps  disputes  or  lawsuits. 

An  American  ship  is  sinking ;  the  captain  runs  her  ashore ; 
some  of  the  cargo  is  saved,  very  badly  damaged ;  the  ship  is  re- 
covered and  repaired.  By  American  law  the  stranding  was  volun- 
tary, and  the  repairs  are  paid  for  by  General  Average  contribution  ; 
and  so  the  shipowner  takes  perhaps  the  whole  of  the  saved  cargo. 


26  MARITIME   LEGISLATION. 

A  Hamburg  ship  has  a  cargo  of  sugar  worth  3,000^.  She 
puts  herself  upon  the  strand;  a  great  part  of  the  sugar  is 
washed  out,  the  remainder  sells  for  3001.  The  ship  is  recovered 
and  repaired  for  2,500Z.  The  cargo  had  to  contribute  to  the  General 
Average,  not  on  the  sold  value,  300Z.,  but  on  the  invoice  value, 
3,000/.  So  that  the  merchant  had  to  give  up  all  his  cargo  that 
was  saved  and  pay  about  1,000L  for  what  was  lost.  The  English 
underwriter  had  to  pay  it :  it  was  Hamburg  law. 

A  Dantzic  vessel  puts  into  Cowes  in  the  beginning  of  winter ; 
frost  sets  in  in  the  Baltic  ;  the  vessel  remains  at  Cowes  all  the 
winter  and  till  the  ports  are  open  in  the  spring.  During  the  re- 
pairs, which  the  rule  I  am  going  to  mention  has  no  tendency  to 
expedite,  the  captain  and  crew  enjoy  themselves  in  the  Isle  of 
Wight  at  the  general  expense  ;  for  by  the  Prussian  law  their  wages 
and  keep  are  General  Average.  By  English  law  it  is  not  so  ;  and 
when  by-and-by,  the  English  underwriter  on  the  cargo  is  called 
upon  to  pay,  the  often-recurring  disputes  commence  again. 

The  following  is  a  curious  case.  A  merchant  shipped  8,000/. 
worth  of  goods  for  Sweden.  Half  (4,000/.  worth)  took  sea- 
damage,  the  other  4,000/.  worth  arrived  sound.  There  was  a 
General  Average  contribution  for  damage  and  expenses.  Now 
first — although  the  General  Average  act  saved  the  goods,  and 
therefore  saved  the  freight,  yet  the  freight  (contrary  to  the  prac- 
tice of  England)  did  not  contribute  :  it  had  nothing  to  pay  for 
being  saved.  Secondly,  the  sound  half  of  the  cargo  was  valued  at 
its  invoice  value,  which  of  course  did  not  include  the  freight,  &c. 
But  ihWdlij,  the  damaged  half  was  valued  at  its  gross  sold  value — 
the  gross  amount  it  realised  when  sold,  and  that  of  course  included 
the  freight.  So  that  the  freight,  in  principle,  in  theory,  was  not 
to  contri])ute  at  all.  By  the  mode  of  settlement  half  did,  in  fact, 
(iiiil  ribiitc,  liiiiriiot.  Tilt',  statement  was  objected  to,  in  this  country, 
on  all  three  grounds  ;  but  it  was  replied,  from  Stockholm,  that  such 
was  the  law  of  Sweden,  and  tho  adjustment  stood  its  ground. 

There  is  a  vast  number  of  cases  of  irregular  adjustments,  not 
ma(l(!  according  to  any  known  l;i\v.  In  ^biiiilla  ;in  cxpfricnced 
Hhipmaster  and  respectable  man  of  business  are  nsnally  employed 
to  invent  flio  adjustments.      Tn  sonic  places  the  notaries  ni!ik(>  tlu^m 


INTERNATIONAL  LAW   OF   GENERAL   AVERAGE.  27 

up.  In  some  places  the  Chambers  of  Commerce  provide  the  ad- 
justers and  dictate  their  law.  In  France,  if  an  adjustment  reaches, 
in  any  way,  the  Cour  de  Cassation,  the  Code  Napoleon  is  applied  to  it. 

But,  practically,  the  Code  scarcely  reaches  the  ports  of  France. 
I  am  informed,  by  a  very  eminent  adjuster,  that  the  adjustments 
made  up  in  Marseilles  are  very  different  from  those  made  up  in 
Le  Havre.  I  have  myself  seen  different  adjustments  made  up 
in  Antwerp,  and  signed  by  the  number  of  adjusters,  prescribed  by 
the  Belgian  Code,  upon  quite  different  principles.  And,  finally, 
London  is  not  always  in  accordance  with  Liverpool,  nor  London 
with  itself. 

Now,  for  all  these  latter  cases  the  remedy,  so  far  as  they  admit 
of  remedy,  is  in  the  establishing  of  skilful  professional  adjusters  ; 
and  this  can  only  take  place  when  the  trade  of  a  port  becomes  so 
considerable  as  to  require  it.  For  the  differences  in  the  laws  of 
countries  there  may  be  a  remedy :  I  hope  that  in  your  discussions 
you  may  light  upon  it. 

Mr.  James  Caddow  (Average-stater,  Liverpool).  In  present- 
ing the  following  observations  to  the  notice  of  the  Association,  I 
propose  to  draw  attention  to  a  few  of  the  discrepancies  and  ano- 
malies that  mark  the  present  system  of  General  Average ;  their  effect 
as  regards  owners  of  ship  and  cargo,  and  their  underwriters  ;  and 
the  necessity  for  uniformity,  and  the  mode  of  attaining  it. 

The  discrepancies  which  exist  in  the  usage  of  the  different 
maritime  countries  in  the  world  embrace — 

1st.  Those  which  arise  in  the  disposal  of  the  items  which  form 
the  subject  or  claim  for  general  contribution. 

2nd.  Those  in  the  valuations  on  which  the  several  interests 
are  made  to  contribute  their  quota  to  the  General 
Average. 

Of  the  first  of  these  two,  tlie  following  constitute  some  of  the 
principal  points  of  difference. 

The  expenses  of  pilotage  and  towage  inwards  and  outwards, 
and  other  charges  incidental  to  a  vessel's  entering  and  departing 
from  a  port  of  refuge. 

Discharging  and  reloading  the  cargo. 

Warehouse  rent. 


28  MARITIME   LEGISLATION. 

Loss  of,  or  damage  to,  cargo,  through  discharging  and  reloading. 

Wages  and  pro\asions  of  crew  during  detention. 

With  regard  to  the  above  expenses  the  practice  in  England  and 
America  may  be  placed  in  juxtaposition,  in  order  to  illustrate  those 
differences  which  it  is  our  object  to  abolish.  In  America  the  whole 
of  the  above  expenses  are  admitted  as  General  Average,  whilst  in 
England  the  outward  charges,  the  expenses  of  reloading,  and  the 
wages  and  provisions  of  the  crew,  are  borne  specifically  by  the 
owners  of  the  ship,  and  the  rent  of  the  cargo,  and  the  damage 
accruing  to  it  from  the  forced  discharge,  fall  upon  its  proprietors.  In 
France  a  distinction  is  drawn  between  cases  in  which  the  putting 
in  is  the  result  of  accidental  damage,  and  those  in  which  it  is  the 
result  of  a  voluntary  sacrifice  of  part  of  the  ship.  In  the  former 
case  the  charges  are  treated  as  special  expenses,  and  in  the  latter 
they  are  all  admitted  as  General  Average. 

Masts,  spars,  and  rigging  cut  away. 

Little,  if  any,  diversity  exists  in  the  mode  of  settling  this  loss 
when  the  articles  sacrificed  are  in  perfect  condition,  and  not  what 
is  technically  termed  '  in  a  state  of  wreck ; '  if,  however,  they  have 
been  previously  carried  away  or  damaged,  a  material  difference 
exists  in  the  practices  prevailing  in  this  and  foreign  countries.  In 
Sweden,  Denmark,  and  Prussia,  the  sacrifice  of  the  above  wreck  is 
allowed  as  General  Average.  In  England,  however,  it  is — I  think 
with  propriety — disallowed,  because  it  is  incumbent  upon  the 
master  in  such  circumstances  to  rid  the  ship  of  what  is  a  mere 
incumbrance  and  impediment  to  her  navigation. 

A  case  came  recently  under  my  observation  where  a  vessel, 
bound  hence  to  Alicant,  encountered  tempestuous  weather,  in 
which  the  masts  were  sprung,  and  fell  overboard  with  all  attached. 
She  put  into  Holyhead,  and  was  towed  to  Liverpool,  where  the 
cargo  was  discharged  in  order  to  effect  the  repairs,  on  completion 
(){'  wliicli  tlie  cargo  was  re-shipped,  and  the  vessel  proceeded.  In 
the  fijreigii  adjustment,  tlie  Tent,  discharge,  and  re-shi]iment  of  the 
cargo  were  included  in  tlic  (General  Average,  and  not  only  was  the 
cost  f)(' re|ilaeing  1  lie  above  s])ai-s  and  rigging  adniided  to  tlu>  same 
(•<)lutnn,  but  acfn.-illy  llie  ensf  ol"  discliarging  and  rent  of  cargo  at 
lliti  jKirl   of  flcslhuiliun  I     'J'liis   nnldoes   in   liberality   the   practice 


INTERNATIONAL   LAW   OF   GENERAL  AVERAGE.  U9 

which  obtained  in  France  some  time  since,  and  whicli  included  in 
General  Average  not  only  all  the  port  charges  and  expenses  in- 
volved in  putting  into  a  port  of  refuge,  but  also  the  extra  cost  of 
repairs  at  that  port,  beyond  their  estimated  cost  at  the  port  of 
destination. 

Damage  done  hy  carrying  a  press  of  sail,  in  order  to  avoid  a  lee 
shore,  is  allowed  in  America,  and  nearly  everywhere  but  in  England, 
where  the  rule  laid  down  in  the  cases  of  Power  v.  Whitmore,  and 
Covington  v.  lloberts,  has  long  prevailed,  and  such  loss  is  of  course 
excluded  from  general  contribution. 

Damage  hy  the  voluntary  stranding  of  a  ship  is  also  admitted  in 
Prussia  and  Denmark,  but  rejected  in  this  country. 

Coppering,  under  certain  circumstances,  may  form  a  subject  of 
General  Average,  and  the  mode  of  adjustment  is  very  different  in 
the  United  States  from  the  practice  observed  in  England.  In  the 
former  country  the  sheathing  put  on,  less  the  proceeds  of  that 
stripped  off,  is  carried  to  the  one-third  column.  Here,  however, 
the  actual  weight  stripped  off  only,  is  allowed  in  full  at  the  price  of 
new,  credit  being  given  for  the  proceeds  realised. 

As  regards  credits  fur  old  materials  sacrificed,  the  plan  in  vogue 
here  again  varies  from  that  of  the  United  States,  where  the  ship- 
owner, who  is  made  to  bear  one-third  of  the  cost  of  new,  receives 
credit  for  one-third  of  the  value  of  the  old. 

Commission  collecting  the  General  Average  is  an  item  invariably 
included  in  American  adjustments,  but  not  recognised  in  England. 

Then,  as  to  the  contributory  values,  in  America,  England,  and 
the  Continental  States  widely  different  rules  prevail. 

For  the  ship. — In  some  cases  she  contributes  for  one-half  her 
value.  In  some  cases  for  four-fifths.  In  other  cases  for  the  actual 
value. 

For  the  freight. — In  some  instances  we  find  it  contributing  on 
one-half  the  gross  amount.  In  some  cases,  on  the  gross  amount, 
deducting  wages  and  port  charges.  In  others,  deducting  wages 
and  pi'ovisions. 

As  regards  the  cargo,  fewer  or  less  prominent  differences  arise 
in  this  respect. 

But  it  is  clear  that  the  whole  system  of  contjibution  is  of  the 


30  MARITIME   LEGISLATION. 

most    confused    and   contradictory    kind,    and    requires    revision, 
amendment,  and  assimilation. 

With  the  above  inconsistencies  and  irregularities  before  us,  it 
cannot  be  matter  of  surprise  than  such  an  abnormal  state  of  things 
should  conduce  to  the  most  unsatisfactory  results.  Let  us  consider 
the  effect  as  regards  the  parties  concerned. 

1.  On  the  shipowner. — A  British  ship,  outward  bound,  puts  into 
an  intermediate  port,  where  the  cargo  is  discharged,  and  during  this 
operation  considerable  damage  accrues  to  it.  At  the  termination 
of  the  voyage  he  is  called  upon  to  pay  his  proportion  of  General 
Average,  including,  of  course,  this  damage,  but  being  insured  in 
this  country  the  underwriters  ignore  the  foreign  adjustment,  simply 
paying  him  the  amount  of  contribution  computed  in  conformity 
with  British  usage,  and  he  consequently  suffers  a  loss  he  never 
contemplated. 

2.  On  the  cargo-owner. — It  frequently  happens  that  a  vessel, 
bound  hence  to  the  United  States,  is  compelled  to  seek  a  port  of 
refuge,  where,  probably,  a  large  amount  of  General  Average  charges 
is  incurred  ;  and  on  arrival  in  the  States  the  adjuster  includes  in 
his  statement,  wages,  provisions,  and  other  items,  which  charges 
the  owner  of  the  cargo  cannot  recover  from  the  underwriters 
here,  who  repudiate  their  liability  on  any  other  than  an  English 
adjustment. 

3.  On  the  underwriters. — From  the  above  it  will  also  be  obvious 
that  the  insurers  of  ship  or  cargo  may  improperly  be  called  upon 
to  pay  as  Particular  Average  the  damages  which  have  already  been 
recovered  by  the  assured  in  the  shape  of  General  Average,  and 
vice  versa. 

It  thus  becomes  the  interest  and  duty  of  all  parties  to  second 
the  efforts  now  made  to  reform  and  remedy  this  anomalous  state  of 
tilings.  Underwriters  and  average  staters  are  painfully  fimiliiirised 
with  the  chagrin  and  disgust  engendered  in  the  minds  of  those 
who  are  tlie  victims  of  a  system  wliich  precludes  the  possibility  of 
an  assured  obtaining  tliat  full  iiKlcinnilication  which,  after  having 
paid  his  jx-riniiiin,  lie  is  nalurally  li'd  In  ;iiil  ici|)!ite. 

Whilst,  however,  our  attention  is  dirccU'd  to  the  diversity  of 
practice  and  usage  as  Ijetwcen  the  \arious  slatrs  of  Kuropo  and 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.  31 

America,  the  fact  must  not  be  overlooked  that  some  rather  serious 
differences  exist  in  tlie  mode  of  settlement  adopted  by  the  various 
average-staters  in  this  country.  For  instance,  it- is  by  no  means  a 
settled  point  whether  damage  done  to  a  vessel's  bottom  by  the  fall 
of  spars  cut  away  comes  under  the  category  of  General  or  of 
Particular  Average  ;  and  the  same  remark  applies  to  the  case  of 
the  remains  of  a  parted  chain  being  slipped,  which  some  consider  a 
General  Average  loss,  whilst  others  charge  it  specially  to  the  ship- 
owner. In  cases  where  a  wreck  of  ship  and  cargo  ensues,  and  the 
master  and  crew  assist  in  saving  property,  some  adjusters  admit 
the  wages  from  the  date  when  the  necessity  for  the  condemnation 
becomes  known  ;  others  again  believe  that  the  condemnation  has  a 
retrospective  effect,  and  advocate  their  allowance  from  the  date  of 
actual  wreck.  Numerous  other  differences  exist,  chiefly  in  matters 
of  detail,  to  which  it  is  unnecessary  to  refer. 

Another  anomaly  to  which  our  attention  may  be  directed,  is 
the  fact  that  the  custom  prevailing  at  Lloyd's  is  not  unfrequently 
at  variance  with  the  legal  decisions  and  opinions  that  have  emanated 
from  our  Courts  of  Law.  For  instance,  the  judgments  delivered 
in  the  cases  of  Gould  v.  Oliver,  and  Milward  v.  Hibbert,  sanctioned 
the  admission  of  jettison  of  deckload  as  General  Average,  when  it 
is  carried  according  to  the  usage  of  trade;  and  in  the  cases  of 
'  The  Copenhagen,'  Da  Costa  v.  Newnham,  and  Plummer  v.  Wild- 
man,  the  tone  of  the  Courts  would  lead  us  to  infer  that  reloading 
and  storage  of  cargo  at  an  intermediate  port  are,  in  the  eye  of  the 
law,  subjects  of  General  Average  contribution.  And  latterly,  in 
the  case  of  Hall  v.  Jansen,  the  present  Lord  Chancellor,  in  de- 
livering the  judgment  of  the  Court,  incidentally  referred  to  the 
expense  of  reloading  as  legitimately  falling  upon  ship,  freight,  and 
cargo.  And  yet  we  know  that  in  all  such  cases  the  judicial  dicta 
are  practically  disregarded  by  the  underwriting  and  mercantile 
community.  Jettison  also,  although  held  by  some  of  our  learned 
writers  on  insurance  to  constitute  a  direct  claim  on  the  policy,  is 
nevertheless  invariably  treated  as  a  loss  recoverable  in  General 
Average.  Such  an  undefined  state  of  the  law,  or  rather  such  an 
antagonism  between  law  and  custom,  should  no  longer  be  tolerated. 

"Without  multiplying  instances,  I  think  that  the  defective  state 


32  MARITIME  LEGISLATION. 

of  tlie  present  General  Average  system  has  been  abundantly  evinced 
and  sufficient  has  been  said  to  force  the  conviction  that  a  para- 
mount necessity  exists  for  having  immediate  recourse  to  measures 
calculated  to  remedy  and  eradicate  the  evils  of  which  it  is  the 
fruitful  parent. 

For  the  attainment  of  uniformity,  let  the  Chambers  of  Commerce 
and  the  Underwriting  communities  in  each  of  the  principal  mari- 
time states  set  to  work  vigorously,  and  if  possible  simultaneously, 
to  form  a  committee  or  sub-congress,  composed  of  individuals 
thoroughly  conversant  with  the  various  questions  in  dispute ;  let 
them  analyse  the  different  regulations  and  customs  which  prevail 
in  their  respective  countries,  pointing  out  the  peculiar  advantages 
and  disadvantages,  and  the  equity  and  anomalies  of  the  main 
features  of  their  own  system  of  General  Average.  Let  a  report 
on  the  subject  emanate  from  every  such  committee.  All  the  reports 
thus  issued  might  then  be  laid  before,  and  be  considered  by,  a 
general  International  Congress,  comprising  delegates  or  representa- 
tives from  the  above  sub-congresses,  whose  duty  it  would  be  to 
examine,  discuss,  and  adjudicate  on  the  subject,  and  whose  decision 
on  all  the  questions  of  general  contribution  would  form  the  basis 
of  a  uniform  legislation  and  codification  of  this  branch  of  maritime 
law. 

For  my  own  part  I  can  see  no  insuperable  obstacle  in  the  way 
of  attaining  an  all  but  complete  uniformity  on  this  subject.  In 
every  maritime  state  the  same  interests  are  involve!,  the  same  sea 
perils  are  encountered,  and  the  circumstances  arising  out  of  each 
marine  adventure  are  similar  in  their  nature  ;  and  the  mutual 
interest  each  has  in  promoting  the  end  in  view,  coupled  with 
probably  the  same  instincts  and  notions  of  justice,  will  doubtless 
facilitate  and  tend  to  the  realisation  of  the  important  object  of  the 
Social  Science  Congress  in  regard  to  this  question.  There  are,  of 
course,  matters  of  detail  arising  out  of  the  peculiar  nature  of  each 
particular  case  which  must  ncc^essai-ily,  and  may  safely,  be  left  to 
tlie  discretionary  treatment  of  tlie  ndjiistcr ;  Imt  in  so  comparatively 
limited  a  (lc|»:u-tmciif  of  uicrcanl  ilc  usiige,  it  is  smcly  iiol  a  iilopiim 
idea  to  Ijclicvo  that  some  assimilut  ion,  at  least  of  general  principles, 
will  be  eflccted,  and  that  tliiis  the  present  uncertainty  of  law  and 


INTERNATIONAL   LAW   OF   GENERAL    AVERAGE.  3:3 

usage  will  bo  swept  away,  and  an  important  advance  be  made  in 
the  direction  of  a  general  codification  of  our  whole  mercantile  law. 

To  smooth  the  asperities  and  allay  the  irritations  of  commercial 
intercourse — to  approximate  more  closely  to  sound  principle  and 
equal  justice  in  settling  the  relations  subsisting  between  the  dif- 
ferent parties  to  mercantile  transactions — to  arrive  at  a  more 
definite  and  uniform  system  of  legislation  on  matters  inseparably 
connected  with  the  existence  of  this  country  as  a  great  maritime 
power,  are  assuredly  objects  worthy  of  energetic  prosecution  ;  and 
if  by  ventilating  the  various  questions,  of  which  the  above  is 
necessarily  the  merest  outline,  our  efforts  eventuate  in  entire  or 
even  partial  success,  this  will  certainly  form  not  the  least  important 
feature  of  utility  which  has  marked  the  career  and  operations  of 
the  '  National  Association  for  the  Promotion  of  Social  Science.' 

^Ir.  L.  R.  Baily  (Average-stater,  Liverpool).  In  considering 
tlie  points  submitted  to  us  in  the  notice  issued  by  the  Association, 
I  will  first  state  how  I  shall  discuss  them.     I  shall  state, 

1st.  The  principles  which  I  consider  ought  to  govern  each  of 
the  points. 

2nd.  The  reasons  why  I  think  it  inexpedient  to  adhere  to  those 
principles  on  all  of  them. 

As  a  means  of  obtaining  a  practical  result  from  this  meeting 
I  shall  then  suggest, 

3rd.  A  plan  for  attaining  the  uniformity  sought  with  as  little 
deviation  from  principle  as  possible,  and  means  for 
carrying  out  that  plan  in  practice. 

1st.  As  to  the  principle  which  I  consider  ought  to  govern  each 
of  these  points. 

(1)  As  to  the  damage  done  to  a  ship    and    her    cargo    by    a 

voluntary    stranding :    this    is,    I    think,    allowable    in 
General  Average. 

(2)  As  to  the  damage  done  to  a  ship  and  her  cargo  by  water 

let  in  or  poured  into  the  vessel  to  extinguish  a  fire : — 
this  also,  I  think,  is  allowable  in  General  Average. 

(3)  As  to  the  damage  done  to  a  cargo  by  chafing  and  breakage 

in  consequence  of  a  jettison  : — this  also,  if  unavoidable, 
is,  I  think,  allowable  in  General  Average. 

D 


34  MARITIME   LEGISLATION. 

(4)  As  to  tlie  damage  done  to  a  cargo  by  discharging  it  at  a 

port  of  refuge  : — tins  also,  if  unavoidable,  is,  I  think, 
allowable  in  General  Average. 

(5)  As  to  cutting  away  wreck  of  masts  which  have  been  acci- 

dentally broken: — this  should  not,  I  think,  be  allowed 
in  General  Average,  for  the  wrecked  state  of  the  masts 
is  the  cause  of  the  damage  which  renders  their  sacrifice 
necessary,  and  it  is  unreasonable,  under  such  circum- 
stances, to  allow  anything  in  General  Average  for  such 
a  sacrifice. 

(6)  As  to  the  expense  of  warehouse  rent  on  the  cargo  at  a 

port  of  refuge,  and  the  expense  of  re-shipping  it,  and 
the  outward  port  charges  at  that  port  when  the  original 
ship  carries  on  the  cargo  from  that  port : — they  all  should, 
I  think,  be  allowed  in  General  Average. 

(7)  As  to  the  damage    done  to    ship,  freight,  and  cargo,  by 

carrying  a  press  of  sail  : — this,  I  think,  should  not  be 
allowed  in  General  Average. 

(8)  As  to  the  wages  and  provisions  of  the  crew  whilst  a  vessel 

is  delayed  by  putting  into  a  port  of  refuge  : — they  are 
not,  I  think,  allowable  in  General  Average. 

(9)  The  contributing  values  of  ship,  freight,  and  cargo  should, 

I  think,  be  the  values  at  the  time  when  they  become 
liable  for  the  General  Average. 

On  these  principles  I  have  stated  the  conclusions  only  at  which 
I  have  arrived,  omitting  the  reasons  for  arriving  at  those  conclu- 
sions ;  because,  as  you  will  see  hereafter,  I  do  not  advise  adherence 
to  these  principles,  and  because  you  may  agree  with  me  as  to  the 
correctness  of  the  principles  themselves,  rendering  an  elaborate 
proof  of  that  correctness  unnecessary. 

I  will  now  consider: 

2nd.  Tlic  expediency  of  deviating  from  the  above  principles, 
and  will  apply  it  to  the  points  under  discussion. 

1.  As  In  I  he  expediency  of  deviating  from  princi'ple  on  antj 
point — 

It  is  not  expedient  to  attempt  to  adhere  to  strict  principle  if 
the  attempt  must  fail,   if  it  will   entail   great  evil  and  but  small 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.  :\r> 

advantage,  or  if  it  will  afford  excuse  for  gross  injustice  and  cause 
constant  disputes. 

It  is  expedient  to  deviate  from  principle  by  adopting  practical 
rules  for  tlie  government  of  all  points  on  which  it  is  practically 
impossible  to  agree  on  facts  ;  otherwise  there  will  be  as  many 
results,  in  any  given  case,  as  there  are  parties  consulted  about  it. 

To  a  merchant  or  shipowner  it  is,  as  a  rule,  of  no  consequence 
whether  his  loss  be  paid  to  him  as  General  or  as  Particular 
Average,  provided  it  is  paid  to  him.  To  underwriters  as  a  body, 
the  same,  provided  they  always  pay  the  loss  in  the  same  way. 
The  great  object  is  certaintij. 

2.  As  to  the  application  of  these  remarlis  to  some  of  the  points 
under  discussion — 

As  to  voluntary  stranding.  A  vessel  on  the  point  of  sinking  is 
run  on  shore.  The  damage  done  to  her,  and  the  cargo,  by  this  act 
is  in  principle  allowable  in  General  Average.  So  far  the  way  is 
clear,  but  now  comes  the  difficulty — what  is  the  damage  ?  It  is 
reasonable  to  suppose  that  the  vessel  was  much  strained,  and  had 
much  water  in  her,  before  the  act  was  done,  or  she  would  not  have 
been  run  on  shore.  Who  can  define  the  damage  done  before,  and 
the  damage  done  by  the  stranding,  especially  when  it  is  borne  in 
mind  that  evidence  on  this  point  is  obtainable  from  parties  in- 
terested on  one  side  only,  and  thus  great  facilities  for  fraud  are 
offered  ?  Under  such  circumstances  is  it  not  better  to  obtain,  by 
some  practical  rule,  practical  certainty  combined  in  most  cases  with 
practical  justice,  rather  than  by  aiming  at  theoretical  equity,  to 
attain  only  practical  injustice  in  most  cases  and  disputes  in  all  ? 

I  would  suggest,  therefore,  in  order  to  obtain  uniformity  with 
as  little  deviation  from  principle  as  possible,  a  practical  rule  which 
shall  place  voluntary  stranding  on  the  same  footing  as  accidental 
stranding. 

For  similar  reasons  I  would  suggest  practical  rules  which  shall 
make  Particular  Average — the  damage  done  to  a  cargo  by  chafing 
and  breakage  owing  to  a  jettison,  and  the  damage  done  to  a  cargo 
by  discharging  it  at  a  port  of  refuge ;  because  the  allowance  of 
these  losses  in  General  Average  opens  a  wide  door  for  fraud  and 
error,  it  being  assumed  in  practice,  when  these  losses  are  allow- 


36  MARITIME   LEGISLATION. 

able,  that  all  the  damage  and  loss  which  the  cargo  has  sustained 
on  the  vo^-age  was  caused  by  the  jettison  or  the  discharge. 

Not  so  as  regards  the  damage  done  in  extinguishing  a  fire. 
I  do  not  see  any  practical  difficulty,  in  the  generality  of  cases,  in 
determinino-  what  damage  was  done  in  that  way  and  what  damage 
was  not  done  in  that  way.  Nevertheless,  in  order  to  prevent 
disputes,  I  would  suggest  a  practical  rule  for  tliis  point  also,  and 
for  the  following  reasons :  the  damage  done  by  the  water  to  goods 
which  are  actually  on  fire  is  not,  in  principle,  allowable  in  General 
Average.  It  is  doubtful  whether  scorched  goods  should  be 
governed  by  the  same  principle.  To  prevent  disputes,  therefore, 
I  would  suggest  a  practical  rule,  which  should  admit  in  General 
Averao-e  the  damage  by  the  water  to  the  latter,  but  not  to  the 
former. 

As  regards  cutting  away  the  wreck  of  masts  accidentally 
broken,  I  would  suggest  to  those  who  differ  from  me  in  principle, 
a  similar  practical  difficulty  to  that  applying  to  voluntary 
stranding,  viz. : — What  is  the  value  at  Avliich  they  are  to  be 
allowed?  And,  influenced  by  that  consideration,  I  would  have 
recommended  a  practical  rule,  excluding  this  loss  from  General 
Average,  if  I  had  held  differently  on  the  principle. 

As  regards  wages  and  provisions  for  the  crew,  I  cannot,  in 
principle,  draw  any  distinction  between  them  and  the  wear  and 
tear  of  the  ship  during  the  same  period,  which  last  is  not  recog- 
nised as  General  Average  in  any  country,  so  far  as  I  am  aware. 
1  do  not,  however,  hope  for  general  support  in  this  opinion,  and 
would  therefore  suggest  a  compromise  by  which  the  shipowners 
should,  during  the  vessel's  stay  at  the  port  of  refuge,  receive  in 
General  Average  some  compensation  for  this  expenditure,  which  it 
may  be  expedient  to  calculate  according  to  an  established  scale. 

On  IIk'  other  points  I  would  adhere  to  principle,  excepting  as 
regards  the  contributing  value  of  freight. 

I  can  see  nothing  to  justify  the  custouis  that  exist  in  some 
countries  of  contributing  on  half  only  of  the  values  of  ship  and 
freif^ht,  of  excluding  freight  altogether  fi'om  coniribution,  or  of  not 
deducting  freight  from  the  value  of  the  cargo  in  arriving  at  the 
contributing  value  of  that   cnrgo.     T   can   see   nothing  to  justify 


INTERNATIONAL   LAW  OF  GENERAL   AVERAGE.  37 

taking  any  values  of  ship,  freight,  aud  cargo,  but  their  actual 
values  at  the  time  when  they  became  liable  for  the  General  Average  ; 
but  as  regards  freight  I  would  suggest  a  practical  rule.  I  cannot 
see  anything  to  justify  the  custom  common  in  this  country  of 
arriving  at  the  contributing  value  of  freight,  by  deducting  from 
the  gross  freight,  not  only  all  the  charges  incurred  after  the 
General  Average  act,  but  also  all  those  incurred  before  that  act, 
such  as  the  charges  at  the  loading  port ;  nor  can  I  justify  the 
practice  in  the  English  Admiralty  Court  in  salvage  suits,  of  making 
no  deductions  from  the  gross  freight,  in  arriving  at  the  freight's 
contributing  value,  but  it  is  not  unreasonable  to  deduct  from  freight 
the  wages  and  port  charges  incurred  after  the  General  Average  act, 
and  therefore  as  a  practical  rule  for  arriving  at  the  contributing 
value  o^ freight,  I  would  deduct  from  the  gross  freight  the  wages 
and  port  charges  incurred  after  the  General  Average  act. 

3.  As  to  the  ijlan  I  would  suggest  for  carrying  out  these  jpractical 
rules. 

I  would  call  the  conclusions  we  may  arrive  at  '  The  International 
Congress  Rules  for  adjusting  General  Average,'  I  would  then  print 
them  and  bring  them  before  the  public — i.e.  the  shipowners,  the 
merchants,  the  underwriters,  aud  the  average  adjusters — and 
would,  if  practicable,  obtain  their  approval  of  them  on  or  before 
the  1st  ]\rarch  next,  a  date  which  would  give  time  for  approval, 
and  amendment  if  necessary.  During  this  period  a  paid  secretary 
will  be  necessary :  his  salary  could  easily  be  raised.  On  and  after 
1st  July  next,  I  would  add  a  clause  to  policies  of  insurance  and 
bills  of  lading,  stipulating  that  '  General  Average,  if  any,  is  to  be 
adjusted  according  to  the  International  Congress's  printed  rules.' 
There  would  be  no  practical  difficulty  in  doing  this ;  for  a  similar 
clause, '  General  Average  according  to  English  custom,'  is  even  now 
not  uncommon  in  bills  of  lading.  When  the  new  clause  is  gene- 
rally inserted  in  policies  of  insurance  and  bills  of  lading,  it  will 
govern  the  mode  of  adjusting  General  Average,  and  the  uniformity 
sought  will  be  attained. 

To  carry  out  the  conclusions  we  may  arrive  at,  or  those  which, 
on  or  before  1st  March  1861,  may  be  substituted  for  them,  every 
one  who  a})proves  of  them  must  act  energetically  for  himself,  and 


38  MARITIME    LEGISLATION. 

if,  as  perhaps  may  happen,  some  of  the  merchants,  shipowners, 
underwriters,  or  adjusters,  before  whom  the  conclusions  are 
brought,  do  not  express  any  opinion  on  them,  those  who  do  ap- 
prove of  them  must  act  as  if  the  conclusions  had  been  generally 
approved  of,  for  no  reform  was  ever  yet  attained  by  waiting  for  the 
action  of  others. 

As  regards  the  future,  I  could  suggest  a  permament  '  Inter- 
national Court  of  Appeal  '  for  the  redress  of  all  other  existing  or 
future  grievances,  but  cui  hono  ?  there  is  not  even  a  reasonable 
probability  that  such  a  court  could  act.  Throughout  this  paper  I 
have  looked  to  practical  results  only,  and  have  avoided  all  theoretical 
remedies.  The  practical  good  must  commence  noiv,  tcliilst  ive  are 
together,  or  it  will  never  come.  The  evils  of  the  differences  now 
before  us  are  great:  let  us  endeavour  to  find  a  speedy  practical 
remedy  for  them.  If  we  accomplish  this,  it  will  not  be  difficult  to 
find  a  practical  remedy  for  others. 

P.S. — In  suggesting  this  practical  rule  for  voluntary  stranding, 
I  do  not  propose  to  exclude  the  damage  done  to  a  ship  above  tvater 
in  heaving  her  off,  when  the  expense  of  heaving  her  off  is  allow- 
able in  General  Average.  There  are  no  great  practical  difficulties 
in  ascertaining  this  damage. 

The  Chairman  hoped  that  Judge  Marvin,  of  the  United 
States,  would  favour  them  with  the  views  of  America  on  the 
subject. 

The  Hon.  Judge  Marvin,  (Delegate  of  the  Chauiber  of  Com- 
merce of  New  York  and  of  the  Board  of  Underwriters  of  New 
York)  said :  I  come  here,  gentlemen,  from  the  city  of  New  York 
more  to  listen  and  to  hear  what  propositions  may  be  brought 
forward  by  the  various  gentlemen  concerned  in  the  subject  of 
General  Average,  than  to  bring  forward  any  measures  of  our  own. 
We,  in  the  New  World,  altliough  our  commerce  is  very  extensive, 
have  not  had  the  time  since  we  were  informed  of  this  meeting  to 
consider  these  questions  as  fully  as  you  linve  on  this  side  of  the 
water.  However,  upon  receipt  oi"  tlin  circular  to  the  Chamber  of 
Commerce,  that  body  thought  it  advisable  to  resi)on(l  to  the  invi- 
tation, and  asked  me  to  at  lend  in  tlu;  capacity  of  its  representative. 
There  is  a  friend,  idso.  here  IVoni  IJoston,  representing  the  Board 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.  39 

of  Trade  of  that  city ;  and  there  is  a  gentleman  likewise  from 
Mobile.  None  of  us  are  prepared  to  read  any  paper  on  the  subject 
under  discussion.  We  are  prepared,  however,  in  the  United 
States  to  co-operate  in  any  movement  that  has  a  reasonable  pros- 
pect of  bringing  about  the  object  so  much  desired  :  the  best  means 
of  bringing  about  that  plan  may  be  discussed  here.  I  have 
listened  to  the  paper  of  Mr.  Baily  as  to  the  plan  of  producing  the 
uniformity  desired,  after  we  have  settled  upon  the  principles.  I 
don't  know  whether  the  plan  which  he  suggests  might  be  made 
effectual  by  clauses  in  the  policy  and  bills  of  lading,  binding  the 
parties  to  submit  the  question  of  settlement  to  the  rules  prescribed 
by  this  Glasgow  meeting.  If  that  should  be  the  idea  acted  upon 
and  adopted  by  this  convention,  we  ought  to  deliberate  very  calmly 
and  consider  the  principles  laid  down  very  maturely,  and  not  draw 
up  rules  with  great  haste  and  without  the  fullest  consideration.  I 
myself,  however,  see  difficulties  in  the  way.  It  is  true  that  clauses 
inserted  in  the  policy  and  bills  of  lading  will  bind  the  parties  to 
the  contract :  but  they  will  bind  no  one  else.  Some  vessels  in  the 
United  States  are  n6t  insured  at  all ;  and  as  to  them,  they  would 
not  be  bound  by  any  policy  of  insurance  they  were  not  connected 
with.  They  might,  perhaps,  be  bound  by  the  bill  of  lading,  but 
they  might  stipulate  otherwise  :  their  rights  and  remedies  would 
be  had  upon  the  law  of  the  land — they  would  appeal  to  their  own 
judicial  tribunals  for  justice.  Mr.  Harper,  in  his  very  interesting 
paper,  which  I  listened  to  with  great  pleasure,  alluded  to  the  idea 
of  legislation  on  the  subject,  and,  to  go  a  little  into  detail,  my  own 
view  on  that  subject  is  this : — That  this  meeting  ought  not  to 
come  to  any  definite  conclusion  as  to  what  the  rules  in  General 
Average  shall  be,  but  that  this  congress  shall  provide  the  means  of 
having  these  questions  referred  to  some  of  the  able  jurists  of  this 
country,  who  should  take  into  their  counsel  all  the  advice  they  can 
obtain  ;  that  those  gentlemen,  within  the  course  of  a  year,  should 
draw  up  the  great  doctrines  of  the  law  of  General  Average ;  that 
they  shall  define,  in  the  form  of  a  bill  to  be  laid  before  Parlia- 
ment, what  is  the  meaning  of  the  term  '  General  Average,'  and 
what  cases  are  to  be  included  within  the  definition  of  General 
Average,  and  that  when  a  case  is  determined  to  be  a  case  of  General 


40  MAEITIME   LEGISLATION. 

Average,  then  to  specify,  as  near  as  well  can  be,  what  expenses 
shall  be  brought  within  it.  Take  a  case  :  if  a  ship  has  to  put  into 
a  port  for  repair,  and  supposing  it  to  be  a  case  of  General  Average, 
they  shall  determine  whether  the  wages  and  provisions  shall  or 
shall  not  be  one  of  the  charges  that  make  up  the  General  Average. 
After  those  rules  have  been  made  up  by  the  experience  and  know- 
ledge of  the  gentlemen — after  the  language  has  been  fully  weighed 
by  them — then  I  would  suggest  the  idea  of  printing  them,  and 
the  lines  should  be  far  apart  to  allow  facilities  for  amendments. 
Then  these  should  be  sent  to  all  parts  of  the  world  ;  and  I  will 
promise  that  in  Boston,  New  York,  and  New  Orleans  any  propo- 
sitions coming  from  this  side  of  the  water  will  receive  their  con- 
sideration on  that  side.  We  will  in  America  take  up  the  rules 
that  are  furnished  to  us,  and  amend  according  to  our  view  of 
the  matter,  by  introducing  alterations  in  the  phraseology  as  we 
think  necessary,  or  by  the  addition  of  entire  sections,  as  might  best 
conform  with  our  views.  They  should  be  sent  to  France,  Holland, 
and  other  commercial  countries,  and  the  people  there  will  make 
them  conform  to  their  opinions.  In  this  way  you  will  collect  the 
opinions  of  gentlemen  who  have  had  time  for  deliberation,  and 
who  are  not  prompted  by  the  spur  of  the  moment  to  give  an 
opinion  they  do  not,  after  deliberation,  agree  to.  Then  these 
papers  should  come  back  to  London  or  Liverpool  :  the  alterations 
and  amendments  are  considered,  and  with  the  experience  they 
have  obtained  and  the  information  they  have  before  them,  the 
gentlemen  will  Ije  able  to  draw  u])  a  Bill  to  be  brought  before 
Parliament,  and  to  be  made  the  law  of  Great  Britain,  A  Bill 
thus  matured  by  the  experience  of  learned  jurists  and  commer- 
cial men  from  the  whole  commercial  world,  I  am  inclined  to 
think,  iiiitwilhstanding  the  remarks  of  Mr.  Harper  to  the  contrary, 
would  pass  Parliament.  Suppose  it  should  become  the  law  of  a 
gi-eat  nation  like  Great  Britain,  whose  commerce  is  in  every  sea, 
and  whose  law  has  its  influ(Mice  all  over  the  world,  I  do  not  think 
there  would  be  any  great  difTiculty  in  getting  such  a  law  enacted 
by  the  Congress  of  the  United  States.  There  would  not,  I  think, 
be  much  difficulty  in  Franco  and  Holland.  In  this  way,  and  by 
legal  enuctmejits,  it  seems  to  me,  iliat  in  the  course  of  three,  or 


INTERNATIONAL    LAW    OF   GENERAL    AVERAGE.  41 

four,  or  five  years,  something  like  a  great  degree  of  uniformity 
may  be  produced  on  this  subject.  In  this  way  you  would  arrive 
at  a  considerable  degree  of  uniformity  as  to  the  definition  of  tlie 
general  law,  but  utter  and  entire  uniformity  in  the  application  of 
law  to  individual  cases  is  hopeless,  in  my  judgment.  That,  we 
cannot  expect  as  long  as  the  minds  of  men  are  unlike,  and  as  long 
as  different  minds  will  take  different  views  of  the  same  question. 
Absolute  uniformity  and  certainty  do  not  belong  to  poor  fallen 
humanity.  Absolute  uniformity  in  practice  we  cannot  expect ; 
but  wo  may  certainly  expect  a  greater  degree  of  uniformity  in 
the  definitions  of  the  law.  Now  take  the  case  that  w^as  put  by 
Mr.  Harper.  A  ship  sails  from  New  Orleans  laden  with  cotton, 
she  puts  into  a  port  in  distress  for  repairs ;  those  repairs  are  made, 
and  she  proceeds  to  Livei-pool.  In  that  case  the  wages  and  pro- 
visions of  the  master  and  crew  during  the  time  of  detention  will 
not  be  paid  at  Liverpool ;  the  expenses  will  fall  upon  the  shipowner. 
But  let  the  same  ship  be  bound  for  Amsterdam,  with  the  same 
number  of  bales  of  cotton,  and  the  provisions  and  wages  would  be 
allowed  :  it  would  be  a  case  of  General  Average.  So  well  is  this 
understood,  that  masters  of  American  vessels,  when  they  have 
been  disabled,  congratulate  themselves  that  they  are  bound  to 
Amsterdam  and  not  to  Liverpool,  because  in  the  one  case  they 
would  be  allowed  provisions  and  wages,  and  in  the  other  they  would 
not.  In  cases  of  temporary  repairs  to  enable  the  vessel  to  carry 
on  the  cargo,  there  would  be  General  Average  in  Havre  and  in 
America — not  so  in  Great  Britain.  We  are  more  inclined  in  the 
United  States,  in  our  general  system  of  law  on  this  subject,  to  be 
in  accordance  with  the  system  prevailing  upon  the  continent  of 
Europe  than  with  that  which  prevails  at  Lloyd's.  The  great  mass 
of  our  common  law  came  from  the  parent  country,  from  England  ; 
but  we  have  adopted  many  of  the  principles  and  ordinances  of 
commercial  law  which  are  not  particularly  British.  In  the  great 
international  laws  of  the  Avorld  we  have  been  more  inclined  to 
approve  of  the  equity  and  justice  of  the  continental  rules  than  we 
have  been  of  those  which  have  been  established  at  Lloyd's,  either 
by  arbitrary  adjustments  or  by  usage.  In  the  principles  pre- 
vailing on  the  Continent,  the  general   maritime  law  has  its  foun- 


42  MARITIME   LEGISLATION. 

dation  in  the  great  system  of  Roman  civil  law  ;  and  there  never 
was  a  system  so  just  in  its  details,  so  perfect  in  its  provisions  for 
the  administration  of  justice  between  man  and  man,  as  the  Roman 
civil  law.  Coming  down  from  the  Romans,  and  revived  in  the 
middle  ages,  it  was  repelled  by  the  spirit  of  liberty  in  England, 
because  it  favoured  despotic  government ;  but,  between  man  and 
man,  the  principles  were  sound  and  excellent ;  and  the  more  the 
civil  laws  of  Rome  are  studied,  the  more  are  our  minds  imbued 
with  the  principles  of  justice  which  characterised  them.  Being 
relieved  from  the  trammels  of  the  English  system,  our  law  on  the 
subject  01  General  Average  is  found  to  be,  in  some  instances,  in 
conflict  with  the  usages  that  prevail  at  Lloyd's  ;  and  our  practice 
will  be  found  to  conform  more  nearly  with  the  practice  and  usage 
that  prevails  throughout  the  continent  of  Europe.  Having  now 
in  this  very  rambling  way  addressed  a  few  words  to  you,  I  submit 
to  listen  to  what  may  be  said  by  the  gentlemerr  present. 

Mr.  J.  Russell  Bradford  (Delegate  of  the  Board  of  Trade 
Boston,  Mass.)  said :  I  have  the  honour  of  standing  here  to  repre- 
sent the  Board  of  Trade  of  Boston.  It  is  quite  recently  that  I 
knew  of  my  appointment,  and  until  the  last  few  days  I  was  very 
uncertain  whether  my  health  would  permit  my  being  here.  My 
friend  from  New  York  has  in  his  closing  remarks  alluded  to  our 
laws  as  being  based  upon  the  old  Roman  law.  Now  we  in 
America  are  inclined  to  think  that,  where  there  has  been  any 
deviation  from  the  Roman  law,  that  law  was  not  at  fault,  but 
British  practice  is  an  innovation,  and  should  be  changed ;  and 
especially  in  Massachusetts  w^e  think  we  stand  very  nearly  in 
accordance  with  the  old  Roman  law.  In  the  voluntary  stranding 
of  a  ship  no  one  with  us  supposes  that  any  other  damage  is  to  be 
contributed  for  but  the  actual  damage  occasioned  by  the  stranding. 
As  to  the  damage  caused  to  ship  and  cargo  in  extinguishing  fire, 
the  damage  to  ship  by  scuttling  is  allowable  b}^  English  rule.  We 
allow  the  vjholr,  damage  done  by  water  in  extinguishing  fire ;  but 
wo  distinguish  verj'  closely  between  the  damage  caused  by  fire  and 
that  caused  by  wat<'r:  W(^  allow  the  (laniagc  done  hy  walcr  soldi/. 
The  wages  and  provisions  we  allow.  Carrying  a  press  of  sail  we 
do  Tiot  allow  :  a  decision  in   a  case   in   the  Sn])reine  Court  of  the 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.  43 

United  States  was  against  it :  the  sails  were  used  for  their  legiti- 
mate purpose,  and,  if  lost  by  unusual  press  of  wind,  ought  not  to 
be  allowed  in  General  Average.  In  the  contributing  value  of  ship, 
freight,  and  cargo  we  follow  the  English  rule,  except  with  regard 
to  the  freight.  I  would  say  a  few  words  in  regard  to  the  carrying 
out  of  any  measures  that  we  may  arrive  at  here.  I  liked  the 
remarks  made  by  Mr.  Baily,  and  it  appears  to  me  that  the  hints 
he  gave,  if  followed,  may  attain  the  result  desired  much  more 
speedily  than  my  friend  who  last  spoke  suggests  would  be  the 
case.  I  think  well  of  that  proposition,  but  I  have  some  doubts  of 
the  passing  of  a  law  by  our  own  Congress.  It  seems  to  me  that 
the  best  way  of  meeting  the  matter  is  by  a  bill  of  lading,  and  to 
treat  this  subject  as  if  there  was  no  insurance  in  the  world,  taking 
as  General  Average  that  which  is  simply  justice  between  man  and 
man,  for  the  matter  of  insurance  will  certainly  adjust  itself;  and 
the  great  object  we  ought  to  have  is  to  try  and  establish  what  is 
justice  between  man  and  man. 

Mr,  Daniel  Wheeler  (Representative  of  the  Chamber  of 
Commerce  of  Mobile)  said  he  was  glad  of  the  opportunity  of 
seeing  the  gentlemen  present.  Notwithstanding  that  the  gentle- 
men from  America  had  read  no  paper,  there  was  evidence  in  the 
speeches  which  they  had  made  that  they  had  studied  the  subject. 
He  was  sure  the  United  States  of  America,  being  the  second 
commercial  nation  in  the  world,  would  willingly  support  the  desire 
to  have  a  uniform  system  of  Average  that  would  be  just  to  all 
nations  and  to  all  people.  The  usage  of  the  State  of  Alabama 
differed  from  that  of  New  York  and  Boston ;  and  in  Mobile,  which 
is  in  that  state,  and,  though  comparatively  new,  had  a  large  com- 
merce, they  were  exceedingly  anxious  to  conform  to  the  best 
usages  of  the  great  commercial  nations.  With  regard  to  the  plan 
of  arriving  at  a  uniform  system,  he  differed  from  the  gentlemen 
who  had  just  spoken.  He  would  look  at  it  as  a  commercial  matter, 
not  as  a  national  one.  The  laws  were  sufficient  already,  and  he 
thought  the  movement  should  commence  with  the  Chambers  of 
Commerce  of  the  various  great  commercial  emporiums.  He  coin- 
cided with  the  gentleman  from  Boston  that  a  much  less  time  than 
four  or  five  years  would  bring  round  a  uniform  system  of  Average, 


44  MARITIME    LEGISLATIOX. 

and  he  would  be  very  mucli  in  favour  of  that  plan  if  it  should  be 
proposed.  Chambers  of  Commerce  were  composed  of  practical 
and  commercial  men,  immediately  interested  and  concerned  in  the 
settlement  of  the  question ;  and  he  thought  the  movement  should 
emanate  from  the  Chambers  of  Commerce  for  the  different  com- 
mercial emporiums. 

The  Chaieman.  The  resolution  which  I  see  here  is  '  that  the 
damage  done  to  ship,  cargo,  and  freight,  by  running  a  ship  on 
shore  ' — that  must  mean  a  voluntary  running  the  ship  on  shore. 
How  would  this  be  ?  I  had  the  misfortune  to  be  in  a  wreck  on  the 
coast  of  Yarmouth  sixty  years  ago,  I  am  sorry  to  say.  Coming 
from  Norway,  after  taking  a  pilot  on  board,  we  struck  on  a  rock  ; 
and  although  it  was  in  the  middle  of  February,  we  had  calms  and 
very  mild  weather,  and  luckily  for  us  that  excessively  moderate 
weather  continued.  Lord  Stuart  de  Rothesay  and  I  were  together, 
and  the  first  thing  that  happened  to  us  was  the  crunch  which 
we  heard  in  our  hammocks  in  the  morning,  before  we  got  out.  We 
went  to  the  pumps,  but  all  our  efforts  were  vain.  We  found  the 
rudder  had  been  carried  away,  and  there  was  a  hole  in  the  bottom 
sufficient  to  sink  the  vessel.  She  was  water-logged  in  the  course 
of  three  hours ;  but,  luckily,  the  cargo  was  of  timber,  and  she  could 
not  sink.  Suppose  this  had  happened  :  suppose  she  had  not  been 
laden  with  timber, — there  she  was  in  deep  water,  and  with  that 
hole  in  her  bottom  she  was  quite  certain  to  sink  if  she  had  not  been 
run  on  shore.  Now,  suppose  she  had  not  had  a  cargo  of  timber, 
and  the  Noi'wegian  captain  had  run  her  ashore,  would  that  have 
been  a  voluntary  act — running  her  on  shore  to  save  her  from  being 
sunk  ?  And  another  risk  was  this : — we  remained  off  there  for 
eiglit-and-forty  hourG,  and  could  not  get  any  boat ;  and  then, 
though  we  were  quite  safe  unless  the  wind  had  sprung  up — and  in 
the  middk;  of  February  the  probability  was  that  a  great  wind  would 
spring  up  either  from  the  shore  or  from  the  sea,  it  did  not  signify 
which — but  if  a  wind  had  sprung  up  she  would  have  gone  to  pieces 
if  she  had  been  driven  out  to  sea,  or  if  she  hod  been  driven  on  shore. 
Would  not  the  captain  have  been  justilicd  in  lliat  case  in  run- 
ning the  ship  on  shore  to  avoid  these  risks?  i  fr  had  two  risks 
to  avoid  :  llit;   wind    getting  up  ;iii(I   (lri\iiig  licr  out   to  sea  or  on 


INTERNATIONAL   LAW   OF   GENERAL    AVERAGE.  45 

shore  ;  and  supposing  she  had  not  been  timber-laden  she  would  have 
sunk.  Would  it  have  been  voluntary  stranding  to  run  her  on  shore 
to  avoid  sinking  ?  I  cannot  see  that  it  would.  The  proposition  is 
that  the  damage  caused  by  running  on  shore  should  be  General 
Average ;  that  would  only  be  a  question  of  fact. 

Mr.  Laurence  R.  Baily  then  moved  the  first  resolution  :  '  That 
the  damage  done  to  ship,  cargo,  and  freight,  by  running  a  ship  on 
shore  (excepting  the  damage  done  to  the  ship  above  water  in 
heaving  her  off,  when  the  expense  of  heaving  her  off  is  allowable 
in  General  Average)  shall  not  be  allowed  in  General  Average.'  He 
did  not  know  whether  he  ought  to  allude  to  the  noble  lord's  remarks 
as  to  voluntary  stranding,  but  perhaps  it  would  be  as  well  to  do  so. 
His  lordship  demurred  to  calling  a  ship  run  on  shore,,  when  she 
was  on  the  point  of  sinking,  a  voluntary  stranding.  What  is 
'  voluntary  '  ?  Anything  which  a  man  does  himself  from  choice  is 
'  voluntary.'  If  a  man  were  standing  on  a  line  of  railway,  and  a 
train  were  coming  up,  he  must,  as  a  reasonable  man,  jump  off  the 
line;  but  still,  if  he  choose  to  abandon  that  character,  he  can  re- 
main on  and  be  killed  ;  and  therefore  his  jumping  off  would  be  a 
voluntary  act. 

The  Chairman.  Suppose  a  highwayman  comes  up  to  you  and 
says,  '  Give  me  your  purse  or  your  life,'  and  you  give  him  your 
money  to  save  your  life,  would  you  consider  that  a  voluntary  act  ? 

Mr.  Baily.  Most  certainly  I  would.  Everything  I  do,  which 
I  can  either  do  or  leave  undone,  is  a  voluntary  act.  I  call  an  act 
which  a  reasonable  man  performs,  a  voluntary  act,  although,  if  he 
continue  to  be  a  reasonable  man,  he  must  perform  it.  For  instance, 
when  I  am  on  a  line  of  railway,  and  jump  off  to  save  my  life, 
jumping  off  is  a  voluntary  act.  If  I  am  going  to  the  bottom  of 
the  sea  with  my  ship,  and  to  save  myself  I  cut  away  her  masts, 
cutting  away  the  masts  is  a  voluntary  act.  When  there  is  a  choice 
of  alternatives,  it  is  clearly  voluntary  when  you  choose  between 
them.  Now  as  to  the  injury  done  :  until  a  thing  actually  happens 
there  is  no  certainty  that  it  will  happen.  That  sinking  to  which 
Lord  Brougham  alluded,  might,  for  aught  we  know,  have  been  pre- 
vented ;  and  the  railway  train  might  have  been  stopped  before  it 
reached  me.    If,  in  such  a  case,  you  convert  a  doubt  into  a  positive 


40  MARITIME   LEGISLATION. 

certainty,  you  have  done  the  shipowner  an  injury.  Whenever  you 
convert  a  doubt — and  a  moral  certainty,  even,  is  but  a  doubt,  i.e. 
an  extreme  degi-ee  of  probability — into  an  actual  certainty,  and 
that  certainty  involves  a  loss,  you  do  a  man  an  injury.  If  you  run 
a  ship  on  shore,  and  that  act  occasions  injury  which  is  clearly 
traceable  to  the  voluntary  stranding  only,  that  is  an  injury  which 
it  is  possible  might  have  been  avoided.  But,  as  I  remarked  in  the 
paper  which  I  read  before  the  meeting,  the  practical  difficulties  are 
so  great,  that,  however  correct  in  theory  it  may  be  to  allow  such 
damages,  I  would  in  practice  reject  them  from  General  Average ; 
for  when  a  ship  is  run  ashore  much  water  is  already  in  her,  and 
she  and  her  cargo  have  both  sustained  much  damage  previously. 
By  running  her  on  shore  these  injuries  maybe  increased  ;  but  who 
in  the  world  is  to  say  what  that  increase  is  ?  Is  it  not  better  to 
waive  your  principle  and  make  a  practical  rule  to  prevent  litigation  ? 
Principle  even  includes  some  only  of  the  damage  sustained  by  ship 
and  cargo,  for  it  excludes  the  damage  which  would  have  happened 
if  the  ship  had  not  been  run  on  shore.  Referring  to  some  remarks 
by  some  of  the  gentlemen  present,  that  in  practice  the  loss  was  not 
allowed,  even  in  those  countries  in  which  the  principle  of  allowing 
it  was  recognised,  and  therefore  the  abuse  of  principle  was  not  to 
be  feared,  Mr.  Baily  added :  As  a  matter  of  fact,  I  differ  from 
some  of  the  gentlemen  who  have  spoken  of  the  practical  working 
of  adhering  to  principle,  for  I  have  actually  seen  adjustments  of 
voluntary  stranding  in  which  the  whole  ship  and  cargo  have  been 
allowed  in  General  Average. 

Tup:  Chairman.  You  consider  voluntary  to  be  that  which  con- 
verts a  moral  certainty  into  an  actual  certainty ;  and,  to  revert  to 
the  case  of  the  highwayman,  when  you  run  the  risk  of  your  life  by 
refusing  to  give  up  your  purse,  and  convert  the  moral  certainty  of 
his  killing  you  into  an  actual  certainty  :  that  is  suicide  on  your  part. 

Mr.  Baily.  Yes.  I  merely  made  these  remarks  to  bring  the 
question  Ijcfore  you,  in  order  that  anybody  who  has  anything  to  say 
on  the  resolution  may  do  so ;  and  I  now  beg  formally  to  move  the 
resolution. 

Mr.  Davison  asked  whether  they  could  come  to  any  vote  on  the 
questions  in  a  mixed  coiii])any  sucli  as  that  present. 


INTERNATIONAL  LAW  OF  GENERAL  AVERAGE.     47 

Mr.  Rathbone  explained  that  voting  papers  would  be  sent 
round,  on  which  gentlemen  should  write  their  names  and  the  bodies 
they  represented,  if  any ;  that  the  names  would  be  printed,  so  that 
the  voting  would  not  be  merely  numerical,  but  would  be  considered 
in  respect  of  the  weight  of  the  names  voting  for  or  against  any 
proposition ;  and  that  he  hoped  no  gentleman  would  vote  except 
those  who  had  given  some  time  and  attention  to  the  subject. 

Dr.  Rahusen,  of  Amsterdam,  said :  Voluntary  stranding  was 
a  measure  justified  only  by  extreme  necessity.  They  must  not  for- 
get that  in  the  various  commercial  codes  which  admit  voluntary 
stranding  as  General  Average,  as  in  the  French,  Dutch,  and  other 
codes,  they  had  done  so  because,  when  the  peril  was  extreme,  there 
could  be  nothing  more  done  to  save  the  ship  and  cargo.  But,  in 
determining  what  ought  to  be  allowed  for  this  voluntary  stranding, 
you  must  distinguish  between  the  damage  sustained  before  the 
voluntary  stranding  and  the  damage  which  is  the  direct  consequence 
of  the  stranding.  Before  the  ship  was  run  ashore  she  might  be  in 
a  very  decayed  or  damaged  state  ;  only  the  damage  that  could  be 
ascertained  to  be  the  direct  consequence  of  the  stranding  could  be 
allowed  in  General  Average.  We  are  told  here  that  the  English 
law  is  much  better  than  the  American,  French,  and  Dutch  laws  ; 
but  they  had  heard  that  morning  from  the  Lord  Advocate  that, 
theoretically,  a  law  might  be  good,  but  practically  bad.  A  theory 
might  be  correct  and  the  practice  inexpedient. 

Mr.  Wertheim  said,  when  they  considered  the  history  of  the 
Dutch  laws,  it  was  certain  that  they  founded  the  first  principles  of 
their  commercial  law  on  the  laws  which'  they  received  from  the 
Roman  Empire  ;  and  a  voluntary  stranding  would  be  contributed 
to  by  ship,  cargo,  and  freight. 

The  Chairman.  Then  freight  would  pay  as  well  as  ship  and 
cargo ;  that  would  be  General  Average. 

Mr.  Wertheim.  That  principle  is  laid  down  in  699  of  the  Dutch 
Commercial  Code. 

Mr.  Bradford  thought  the  resolution  went  too  far.  The  vessel 
is  not  in  a  sinking  condition  in  every  case  of  voluntary  stranding; 
in  a  great  majority  of  cases  where  there  was  voluntary  stranding, 
there  was  dragging  or  hedging  towards  the  shore,  where  there 


48  MARITIME   LEGISLATION. 

miglit  be  rocks  ;  and  the  master  clioss,  instead  of  holding  on  witli 
the  anchor,  to  sacrifice  the  safety,  whatever  it  was,  and  run  the 
ship  on  shore.  That  was  clearly  the  act  of  man — the  judicious  act 
of  man.  But  the  anchors  might  hold,  for  it  was  nothing  unusual 
to  brinw  up  a  ship  after  she  had  dragged ;  the  master  sacrificed 
that  chance,  and  ran  her  on  the  strand.  If  he  damaged  his  vessel 
and  then  ran  her  on  shore,  and  said  the  cargo  and  freight  should 
contribute  for  the  value  of  the  ship,  he  could  not  allow  that  ;  he 
never  knew  that  to  be  allowed  in  General  Average.  The  ship  had 
no  value,  and  where  was  the  loss  ?  There  was  a  case  in  which  a 
ship  was  tight,  and  was  going  towards  the  shore  ;  still  she  might 
have  held  on  ;  but  the  master,  seeing  a  sandy  beach,  ran  her  so 
high  and  dry  that  she  could  not  get  off.  Tlie  Court  had  decided, 
and  the  English  adjusters  had  taken  the  same  ground,  that  where 
there  was  a  voluntary  stranding  they  must  pay  for  it.  The  master 
gave  up  a  chance  of  safety,  perhaps  a  good  chance,  and  ran  the 
ship  on  shore. 

Mr.  Rathbone  did  not  suppose  that  the  captain  of  that  ship 
intended  to  run  her  up  so  high  that  she  could  not  float  again  ;  and 
that  he  only  chose  one  kind  of  danger  instead  of  a  greater  danger. 
The  captain  considered  that,  in  running  the  ship  on  shore,  he  put 
her  into  greater  safety  than  leaving  her  where  she  was.  He  thought 
there  was  no  voluntary  saci'ifice  in  that  case,  and  that  the  captain 
did  the  best  he  could  for  the  ship,  supposing  there  had  been  no 
cargo  or  freight  whatever. 

Mr.  Bradford  said  they  considered  it  was  precisely  the  same 
as  cutting  away  the  masts.  There  might  be  a  necessity  for  it,  and 
they  allowed  it ;  and  so  also  in  jettison. 

Mr.  Harper  thought  it  should  always  be  considered  that  the 
master  made  a  sacrifice  in  electing  to  run  his  ship  on  shore ;  he  did 
make  a  sacrifice,  and  therefore  the  value  of  the  ship  should  be  con- 
tributed for. 

Ml{.  Bailv  said  tin-  resolution  was  that  the  damage  which  they 
were  discussing  shouhl  ant  Ije  allDwcd  in  (icni'j'al  Average.  He 
merely  stated  his  own  reasons  for  the  vote  he  intended  to  give. 
Although  he  considered  the  damage  done  in  this  way  was  in  theory 
allovvublf  in  General  Average,  yet  from  his  practical  experience  he 


INTERNATIONAL   LAW   OF    GENERAL   AVj:iiAGE.  -J9 

was  of  opinion   that  tlie  disputes  arising  from  treating  it  in  that 
way  in  practice    would  be  so  numerous,  that  the  little  theoretical 
good  that  would  be  got  Iroin    trying  to  follow  principle  would  be 
more  than  counterbalanced  by  the  annoyances  and  inconveniences 
the  attempt  would  occasion,  because  they  had  to  deal  with  facts,  and 
facts  were  not  easily  ascertained  in  such  cases.     He  would  suppose 
a  case  in  which  the  ship  had  been  run  ashore  and  the  damage  was 
to  be  allowed.     Let  there  be  twenty  adjusters  consulted  as  to  the 
amount  of  the  General  Average,  and  no  communication  between 
them,  and  he  would  undertake  to  say  that  no  two  out  of  the  twenty 
would  agree  in  their  adjustments  of  the  case.     The  facts  on  wliich 
they  had  to  decide  were  hypothetical,  and  no  one  could  determine 
the  exact  amount  of  damage    caused  directly  by  the  stranding. 
Another  difficulty  was  this  :  the  evidence  was  all  on  one  side,  that 
representing  the  ship.     On  the   other  side  there  could  be  nothing 
but  argument.     So,  whatever  they  might  think  of  the  theory,  it 
would  be  better  to  give  up  that  theory  on  the  ground  of  expediency. 
Mk.  James  Broun  considered  that  if  upon  this  resolution  was 
intended  to  be  founded  an  application  for  a  legislative  enactment 
they  ought  to  oppose  it ;  but  if  it  were  merely  a  recommendation 
to  put  a  clause  in  the  bill  of  lading,  he  had  no  objection  to  it.     If, 
however,  it  was  to  be  made  law,  it  was,  upon  the  very  face  of  it, 
in  the  teeth  of  the  principles  upon  which  General  Average  was 
founded,  because  it  was  a  voluntary  act  in  law  where  the  will  of 
man  interposed.     But  where  the  will  of  man  interposed  for  the  pur- 
pose of  saving  ship,  cargo,  and  freight,  that  was  General  Average ; 
and  it  was  the  policy  of  the  law  from  the  beginning,  that  if  people  did 
not  make  it  a  contributory  loss,  people  would  not  make  the  sacrifice. 
In  the  case  of  goods  thrown  overboard,  the  theory  was  that  as  those 
goods  were  thrown  overboard  for  the  safety  of  all,  a  sacrifice  was 
made  for  the  common  benefit,  it  was  a  common  contribution.     In 
cases  of  running  the  ship  on  shore,  the  captain  would  alwa3\s  con- 
sider whether  other  people  would  sustain  the  damage  done  to  the 
vessel ;  but  when  he  knew  that  there  would  be  no  contribution,  he 
had  no  interest  in  doing  so.     Of  course  those  who  knew  the  prac- 
tical difficulties  of  making  up  adjustments  had  all  the  facts  before 
them,  and  ought  to  know  whether  they  wore  insuperable. 


50  MARITIME   LEGISLATION. 

Mr.  Harper  said  when  n  ship  was  run  ashore  all  parties  were 
at  an  equal  risk  ;  there  was  no  selection  for  the  ship  and  cargo. 
They  were  all  exposed  to  an  equal  danger  in  the  hope  of  saving 
all.  Thev  were  all — ship,  cargo,  and  freight — put  to  an  equal 
risk,  a  great  risk,  in  the  hope  of  saving  them  from  a  greater  one. 

Hon.  Judge  Marvin  would  suggest  an  amendment.  In  theory 
and  principle  the  resolution  was  wrong  ;  and  he  did  not  know 
why  they  should  give  up  a  good  principle  when  they  might  avoid 
the.  inconvenience.  Suppose  they  had  an  amendment  something 
like  this :  '  Stranding  of  ships  shall  be  deemed,  irrimd  facie^  to  be 
involuntary,  and  not  the  subject  of  General  Average;  but  if  it 
shall  appear  that  the  case  is  one  of  intentional  stranding  with  the 
view  of  the  safety  cf  all,  then  such  a  case  does  come  within  the 
principle  of  General  Average,  as  an  exceptional  case.' 

Mr.  Baily  observed  that  in  practice  every  case  that  came 
before  adjusters  was  the  exception.  When  a  ship  is  damaged,  the 
only  evidence  that  can  be  obtained  is  one-sided. 

The  Chairman.  Suppose  we  take  it  in  this  way :  that  the 
damage  done  to  ship,  cargo,  and  freight,  by  running  a  ship  on 
shore,  shall  not  be  allowed  in  General  Average,  although  it  was 
done  for  the  benefit  of  ship,  freight,  and  cargo. 

Mr.  Baily.  Yes. 

After  some  conversation,  the  first  resolution,  as  originalh"  pro- 
posed, was  put  to  the  vote,  and  negatived  by  a  majority. 

An  amended  resolution  was  afterwards  carried  upon  this  subject 
on  the  third  day. 

Hon.  Judge  Marvin  then  proposed  the  second  resolution : 
'  That  the  damage  done  to  ship,  cargo,  and  freight,  in  extinguish- 
ing fire,  sliall  be  allowed  in  General  Average.' 

Dr.  Haiiusen  suggested  that  the  resolution  should  be  altered  to 
the  '  damage  done  by  water,'  as  that  would  make  the  meaning 
more  clear. 

Mr.  Baily  thought  that  if  they  confined  it  to  tlu;  damage  done 
by  water,  it  would  still  leave  tlie  question  unsettled,  for  there 
would  still  remain  the;  damage  ddiic  in  getting  at  the  fire,  in  order 
to  extinguish  it:  such  as  cargo  thiown  overboard,  breaking  down 
a  caljin,  ^c. 


IXTEUNATIONAL   LAW   OF  GENERAL   AVERAGE  51 

Mr.  Richards  objected  to  that  being  cliurged  to  General 
Average,  on  the  same  ground  that  he  objected  to  the  resolution  on 
voluntary  stranding.  If  the  fire  was  in  one  part  of  the  ship,  and 
cargo  that  could  be  readily  got  at  was  in  another  part,  they  would 
take  the  goods  out  of  another  batch  not  affected  by  fire,  and  put 
them  into  lighters :  but  the  damage  done  by  water  poured  upon 
the  fire  was  purely  accidental,  and  the  parties  affected  should  treat 
it  as  Particular  Average ;  and  he  saw  no  reason  why  they  should 
change  the  system. 

Mr.  Baily,  referring  to  some  remarks  that  liad  been  made 
that  injury  by  water  in  such  a  case  was  not  a  sacrifice,  as  the  ship 
and  cargo  on  fire  would  have  been  lost  but  for  the  water,  said  they 
never  had  a  General  Average  act,  excepting  when  the  ship  was 
brought  to  a  state  in  which  it  was  supposed  that  she  would  be 
lost.  On  that  principle,  masts  cut  away  should  not  be  allowed ; 
for,  if  the  vessel  were  going  to  the  bottom,  cutting  away  her 
masts,  and  thus  saving  her,  would  be  a  positive  benefit  to  her. 
With  reference  to  Mr.  Richards's  remark  about  craft  takinar  a 
portion  of  the  cargo  into  safety,  that  must  be  an  accidental  circum- 
stance, not  to  be  dealt  with  as  a  matter  of  princi]3le.  When  a 
fire  was  raging  in  a  ship,  they  had  to  pour  water  into  her  as  a 
means  to  put  it  out ;  and  if  they  injured  other  portions  of  the 
ship's  cargo  by  so  doing,  surely  they  had  injured  the  owner  of  that 
property,  and  as  they  had  done  so  for  the  general  good,  all  the 
property  that  was  saved  ought  to  contribute  in  proportion  to  the 
benefit  it  had  derived  from  the  General  Average  act.  If  there 
were  any  little  difficulties  in  the  matter,  it  was  better  that  they 
should  have  a  general  rule.  It  was  undoubtedly  the  custom  to 
exclude  it  in  this  country,  but  it  was  not  so  in  foreign  countries. 
In  America  and  on  the  Continent  he  should  say  that,  as  a  rule, 
they  all  allowed  it,  although  there  might  be  a  few  exceptions.  He 
did  not  see  any  practical  difficulties  in  getting  at  the  damage  done 
to  ship  and  cargo  by  water  and  by  fire. 

Mr.  Leathley  said  he  thought  it  was  due  to  the  meeting  to 
state  the  reasons  why  he  did  not  wish  to  vote.  Lloyd's,  with  which 
he  was  connected,  wished  well  to  this  movement ;  but  thev  he 
believed,  considered  it  premature  to  enter  into  the  discussion  of 

E  2 


52  MAT^ITIME   LEGISLATION. 

the  details ;  and  not  having  from  them  any  commission  to  assent  to 
or  dissent  from  any  resolution  which  should  be  proposed,  he  ought  to 
abstain  from  voting.  In  anything  he  did,  he  wished  it  to  be  under- 
stood that  he  spoke  simply  in  his  individual  capacity.  He  would 
adopt  the  suggestion  which  Judge  Marvin  had  made :  he  would 
take  into  consultation  the  best  advice  he  could  possibly  obtain — 
the  most  eminent  men,  persons  whose  education  and  habits  entitled 
them  to  form  opinions — taking  a  comprehensive  and  enlarged  view 
in  general,  as  well  as  particular  cases.  That  being  his  position  at 
the  present  time,  he  did  not  propose  to  give  any  expression  of 
opinion,  either  as  an  individual  or  as  representing  the  Committee 
of  Lloyd's;  though  at  the  same  time  heAvished  the  movement  well, 
and  hoped  it  would  effect  the  result  aimed  at.  No  doubt  it  would 
take  some  time  to  produce  any  practical  result,  but  so  must  every 
movement  of  this  kind — no  reforms  were  ever  made  in  a  day,  and 
this  was  not  a  reform  which  was  likely  to  occupy  a  very  short  time 
before  it  was  effected. 

Mr.  Kathbone  observed  that  of  course  no  one  wished  to  inter- 
fere with  Mr.  Leathley's  judgment ;  but  many  of  the  gentlemen 
present  had  given  full  consideration  to  such  questions  in  different 
countries ;  and  he  doubted  whether  such  an  assembly  as  that 
present  had  met  for  the  same  purpose  before.  They  were  gentle- 
men whose  opinions  were  of  great  importance,  and  he  thought  it 
was  of  the  utmost  value  to  have  expressed  the  opinions  of  Antwerp, 
Amsterdam,  Bremen,  and  America,  even  if  they  did  nothing  more. 

The  motion  having  been  passed  by  a  majority,  and  the  time 
for  rising  having  arrived,  the  section  adjourned  until  the  following 
day. 

Wednesday,  Scj^temher  2G. — Lokd  Neaves  prc^klinq. 

The  CiiAiiiMAN,  in  opening  the  proceedings,  briefly  explained 
the  business  whicli  had  been  transacted  at  the  i)revious  meetino". 
and  said  it  was  of  course  understood  llmt  llic  c)iily  object  of  the 
resolutions  was  to  ascertain,  as  a  matter  of  fuel,  I  lie  predoiniuant 
feeling  and  generally  prevailing  sentiment  among  those  who  were 
entitled  to  give  an  opinion  on  flio  matter;  and  where  there  were 


INTEllNATIONAL   LAW    OF   GENERAL   AVEliAUE.  53 

gentlemen  assembled  from  all  parts  of  the  world,  it  was  important 
that  all  their  opinions  should  be  ascertained,  so  that  due  effect 
might  be  given  to  them.  If  some  gentleman  would  be  so  kind  as 
to  read  the  third  resolution  to  be  proposed,  then  he  would  be  glad 
to  hear  anything  that  any  gentleman  had  to  say  with  regard  to  it. 

Mk.  Rath  hone  moved,  p-o  forma,  the  third  resolution  :  '  That 
the  damage  done  to  cargo  by  chafing  and  breakage,  resulting  from 
a  jettison  of  a  portion  of  the  remainder  of  the  cargo,  shall  not  be 
allowed  in  General  Average.' 

Mr.  AV.  J.  Lamport,  in  the  special  interest  of  the  shipowner, 
asked  them  to  pause  before  they  agreed  to  such  a  resolution.  The 
question  was  whether  the  loss  should  fall  upon  the  owner  of  the 
individual  interest — i.e.  be  a  Particular  Average — or  whether  it 
should  be  a  general  contribution.  There  had  been  a  disposition  in 
some  degree  to  adopt  general  principles  by  which  practical  expedi- 
ency might  be  gained ;  and  the  question  was,  whether  it  was  pos- 
sible correctly  to  ascertain  in  an  individual  case  whether  the  loss 
was  particular  or  general ;  but  with  regard  to  the  present  resolution, 
he  would  remind  the  section  that  it  would  be  absolutely  necessary 
in  every  case  to  decide  whether  the  chafing  was  the  result  of  im- 
proper stowage  or  of  a  jettison ;  the  question  not  being  whether 
it  be  not  a  loss  to  fall  on  the  individual  interest  or  whether  it  be 
made  good  by  general  contribution,  but  whether,  in  order  to  prevent 
the  trouble  of  ascertaining  what  the  real  facts  of  the  case  are,  the 
burden  of  proof  is  not  to  be  thrown  on  another  class  of  people,  the 
shipowners.  The  result  of  adopting  that  resolution  would,  in 
almost  every  case,  be  to  throw  the  loss  upon  the  shipowner  unjustly. 
Could  they  ascertain  the  cause  of  chafing  ?  The  supporters  of 
this  resolution  could  not  do  so  with  anything  like  certainty :  it 
might  have  arisen  from  improper  stowage  or  from  a  jettison  ;  and 
the  only  change  effected  by  the  resolution  would  be  to  throw  the 
onus  of  proof  from  one  set  of  shoulders  to  another. 

The  Chairman  inquired  whether,  supposing  such  and  such 
damage  did  actually  result  from  a  jettison,  was  there  any  question 
as  to  the  principle  ? 

Mr.  Baily.  Some  gentlemen  near  me  dispute  the  principle. 

The  Chairman  said  the  question  was  whether  they  would  give 


54  MARITIME   LEGISLATION. 

up  the  principle  on  an  ascertained  statement  of  facts,  or  would  the 
difficulty  of  di-awing  the  line  induce  them  to  waive  the  principle 
altogether  ? 

Mr.  Leathley  thought  there  was  one  thing  absent  in  the 
statement  of  facts  which  was  an  essential  element  in  General 
Average,  and  that  was  the  selection  of  some  particular  thing  for 
destruction  for  the  general  benefit  of  the  parties  concerned.  In 
the  present  case  there  was  no  intention  to  injure  certain  goods  ;  it 
was  simply  an  accident.  The  same  principle  ran  through  the  whole 
spirit  of  English  jurisprudence,  and,  he  contended,  correctly  so. 
There  was  an  absence  of  any  intention  to  injure  the  property. 
There  was  another  thing  which,  as  a  matter  of  principle,  ought  to 
be  present,  which  was  certainty.  AVhen  a  person  had  sustained 
injury  it  ought  to  be  shown  that  the  injury  had  been  actually  sus- 
tained ;  but  when  it  was  a  question  of  chafing  it  was  impossible 
to  show  when  and  how  and  where  it  had  occurred ;  it  might  be 
chafed  at  one  time  or  at  another.  The  whole  thing  was  involved 
in  ambiguity,  which,  he  contended,  ought  to  withdraw  it  from 
General  Average. 

The  Chairmax.  The  question  involved  is — Is  it  the  result  of  a 
jettison  for  the  general  good  or  for  a  part  ? 

Mr.  Leathley.  I  deny  that  it  is  a  certainty.  There  may  be, 
and  sometimes  is,  a  chafing  after  a  jettison,  but  it  is  purely  inci- 
dental. 

Mr.  Harper.  But  the  master  contemplates  the  possibility. 

Mr.  Baily  said  there  was  a  particular  way  of  stowing  a  cargo 
by  which  the  whole  was  kept  steady ;  and  if  the  master  took  out 
tlie  wedge  that  kept  the  goods  fast,  and  thus  permitted  them  to 
move  about,  the  natural  consequence  was  that,  having  loosened 
them,  they  would  rub  up  against  and  chafe  one  another.  This 
natural  expectation  of  what  would  h!ip])cn  is  followed  in  the  case 
before  us  by  the  fact  lliat  it  did  li;ip|Mii.  If  a  mast  were  cut  away 
;iii(l  ill  its  full  knocked  down  another,  thost'  wlio  support  this  reso- 
Jution  on  principle  would  allow  the  second  mast ;  and  he  therefore 
could  not  sec,  if  thf\y  admitted  I  hat  the  chaft;  was  (he  unavoidable 
consequence  of  tlirowin;/  o\crl)o;ir(l  a  ])orti(iii  of  the  cm-go,  liow 
they  could  resist  on  i)riiiciplf  th<-  allowance  ot"  tiie  lo.js  in  General 


INTERNATIONAL    LAW    OF   OENLIJAL    AVKKAOE.  55 

Average.  But  there  were  several  practical  difficulties.  The  mere 
fact  that  the  wedge  was  taken  out,  aud  that  the  dialing  happened 
from  it,  was  not  sufficient  to  justify  tlie  allowance,  if  the  loss  could 
have  been  arrested,  prevented,  or  checked.  If  you  throw  on  an 
individual  the  responsibility  of  clearing  himself,  you  get  nearer  to 
truth  in  practice  than  when  you  spread  the  loss  over  a  large  body. 
If  the  shipowner  should  clear  himself  in  such  a  case,  the  practical 
rule  will  throw  the  loss  on  the  underwriter  of  the  goods  chafed. 
The  object  of  the  rule  was  not  somuch  to  throw  the  absolute 
responsibility  or  the  difficulties  of  the  case  upon  the  master  as  to 
get  at  facts. 

IVIr.  W.  J.  ToMLiNSON.  Are  we  trying  a  question  of  principle 
or  expediency  ? 

Mr.  Ratiibone.  The  questions  have  all  been  put  both  upon 
principle  aud  expediency. 

The  Chairman.  Where  a  resolution  arises  it  may  be  supported 
or  opposed  on  two  grounds — on  principle,  or  on  the  ground  that, 
even  supposing  it  to  be  consistent  with  principle,  it  is  not  expedient, 
from  the  difficulties  of  the  investigation  or  from  other  inducements, 
to  adopt  it. 

Mr.  Tomlinson  said  one  of  the  questions  settled  yesterday  was 
on  principle,  and  another  on  the  ground  of  expediency.  With 
reference  to  the  resolution — if  a  cask  were  removed  from  the  cargo 
and  the  next  was  uninjured  by  chafing,  was  it  right  that  the  ship- 
owner should  be  made  responsible  for  that  ?  Was  the  shipowner 
to  be  made  liable  ?  No,  certainly  not.  His  own  opinion  was  quite 
clear,  both  as  to  principle  and  to  the  expediency. 

Mr.  Richards  said  he  quite  agreed  with  the  resolution  in  ftict 
and  in  expediency.  Unless  there  was  a  limit  drawn  as  to  what 
General  Average  was,  they  would  get  into  interminable  confusion. 
In  the  case  of  jettison  of  goods,  that  was  of  course  a  direct  act, 
and  of  course  General  Average,  but  the  consequence  of  that,  the 
derangement  of  the  cargo,  ought  not  to  follow  as  a  General 
Average  act.  If  it  was  meant  to  do  so,  there  was  no  knowing  to 
what  extent  it  might  go ;  and  no  line  could  be  drawn  unless  you 
drew  it  between  the  immediate  and  direct,  and  the  consequential 
and  inferential  result  of  the  action.     The  jettison  was  a  direct  act, 


56  MAIIITIME    LEGISLATION. 

and  was  therefore  General  Average  :  tlie  injury  caused  by  the 
derangement  of  the  ship's  cargo  was  a  secondary  consequence,  and 
therefore  ought  to  be  borne  by  the  owners  of  the  specific  goods. 

Mr.  Leathley,  taking  up  the  argument  of  ]\lr.  Richards,  asked 
where  this  liability  as  to  consequential  damage  was  to  stop.  Cargo 
would  deteriorate  to  a  certain  extent  by  detention  at  a  foreign  port. 
He  had  known  tea  depreciate  in  value,  to  the  amount  of  a  farthing 
a  pound,  in  consequence  of  detention.  If  the  line  was  to  be 
drawn  anywhere,  why  not  draw  it  between  direct  and  secondary 
consequences?  "When  articles  were  selected  for  the  purpose  of 
sacrifice,  all  well  and  good ;  but  when  you  went  beyond  that  point 
the  loss  might  be  traced  to  inferential  consequences,  and  it  was 
impossible  to  make  any  selection  in  that  case. 

Mr.  L.uiroRT  thought  that  wliere  the  consequential  damage 
was  uncertain  there  should  not  be  General  Average ;  where  it  was 
certain,  it  should  be  General  Average.     If  the  chafing  of  goods 
was  the  certain  and  undoubted  consequence  of  the  jettison,  then, 
he  said,  in  principle  it  ought  to  be  the  subject  of  General  Average. 
The  question  was  as  to  the  uncertainty.     As  a  shipowner  he  was 
perfectly  aware,  from  practical  experience,  that  it  was  considered 
necessary,  in  order  to  relieve  the  shipowner  from  responsibility, 
that  he  should  be  in  a  position  to  prove  that  the  damage  did  not 
occur  from  his  default.     As  a  matter  of  practice  the  onus  of  proof 
was  undoubtedly  thrown  upon  the  shipowner.     He  would  prove 
that  the  damage  to  tlie  goods  did  not  arise  from  improper  stowage. 
Then  wliat  did  it  arise  from  ?     Of  course  from  tlie  jettison,  and  the 
cliafing    liaving  ccrfaiiily  arisen   from  Iho   jettison,  the  principle 
refjuired    that  it    sliould    be  made  good  by  general  contribution. 
Tliere    were    peculiar    kinds   of  cargoes   whicli  might    be   almost 
entirely  lost  by  chafing,  and  il"  llir  loss  was  undoubtedly  ascertained 
as  ilif  ciM-l.'iiii  conscrjucnce  of  IIm'   jrllisiui,   wliat  distinction  was 
tliero  btlwccn  the  cask  thrown  overboard  and  the  cask  broken  in 
the  hold  and  the  contents  leaked  out?      Ivieli   was  the  direct  and 
consequent  loss  of  the  jettison,  iiikI  oii^lii  lo  iMlow  llie  same  rule. 

Till  f 'llAIK.MAN  suggested  wlirtlier  llic  line  nilnlit  imi.  lie  drawn 
fil  aiK.l her  place,  for  to  djaw  il  lietwceii  diicel  and  eonse(juential 
wa:-  not  easy — whether  i(  uiuild  not  do,  occasioned  liy  the  jettison. 


INTKltXAIlONAL    LAW   OF   GENERAL   AVEKAGE.  57 

notwitlistanding  tliat  the  cargo  was  previously  well  stowed,  and 
notwitlistanding  the  jettison  every  care  was  taken  to  keep  it  all 
right,  but  that  which  was  the  result  ard  undoubted  consequence 
of  the  jettison. 

Hon.  Judge  Marvin  asked  whether  upon  a  policy  of  insurance 
upon  cargo  the  underwriter  would  be  liable  for  the  breakage  of 
cargo  caused  by  the  jettison. 

Mh.  Leathley  replied  that  certainly  he  would  be  bound  under 
the  policy  of  insurance. 

Hon.  Judge  Marvin  thought,  if  the  chafing  and  breakage 
were  the  immediate  result  of  the  jettison,  it  should  be  allowed  ; 
but  if  it  were  not  tlie  immediate  consequence  of  the  jettison,  or 
if  it  were  caused  by  the  neglect  of  the  ship-master,  it  should  not 
be  allowed.  As  the  resolution  stood,  he  would  be  compelled  to 
vote  against  it ;  but  he  hoped  the  words  '  not  immediately  result- 
iusf '  would  be  introduced  into  the  motion. 

Mr.  Baily,  although  he  might  differ  with  the  principle,  still 
thought  very  strongly  that  it  was  a  question  of  expediency. 
The  resolution,  on  being  put  to  the  vote,  was  carried. 
Mr.  Rathbone  next  moved  :  '  That  the  damage  done  to  cargo 
and  the  loss  of  it  and  the  freight  of  it,  resulting  from  discharging 
at  a  port  of  refage  in  the  way  usual  at  the  port  with  ships  not  in 
distress,  shall  not  be  allowed  in  General  Average.' 

Mr.  Leathley  thought  this  resolution  involved  exactly  the 
same  question  as  that  included  in  the  last.  The  spirit  of  the  one 
was  embodied  in  the  spirit  of  the  other ;  and  those  who  supported 
the  last  would  support  this,  and  those  who  opposed  the  last  would 
oppose  the  present  resolution. 

j\Ir.  Baily  thought  otherwise,  and  observed  that  when  a  cargo 
is  discharged  there  are  some  articles  which  it  was  not  possible  to 
avoid  injuring,  the  mere  effect  of  moving  them  was  sufficient. 
With  hides,  for  instance  :  the  stowing  of  hides  at  the  ports  at 
which  they  were  obtained  was  a  peculiar  trade,  and  in  no  other 
port  except  such  ports  could  they  be  properly  stowed.  All  the 
care  in  the  world  would  not  enable  them  to  re-stow  the  hides  at  a 
port  of  refuge,  not  a  hide  port,  without  injury.  Then  again,  they 
very  often  found,  when  a  cargo  was  discharged,  that  it  was  neces- 


58  MARITIME   LEGISLATION. 

sarily  injured  from  exposure  to  the  weather,  or  it  was  lost  between 
the  sliip  and  the  warehouse.  At  the  end  of  the  voyage,  again, 
they  found  that  the  cargo  was  short  or  injured,  and  the  only  way  to 
account  for  it  was  that  the  losses  had  taken  place  at  the  port  of 
refuge,  and  it  could  not  have  happened  there  if  the  vessel  had  not 
put  into  that  port  and  been  discharged  there.  Exposure  to  the 
atmospliere  would  cause  injury  to  some  kinds  of  cargo.  All  these 
questions  must  be  considered.  Again,  when  a  cargo  was  taken 
out  of  the  ship  and  put  into  a  warehouse  at  a  port  of  refuge,  some 
of  it  might  be  stolen  from  the  warehouse,  or  might  be  burnt,  or, 
as  had  recently  occurred  in  a  case  in  which  he  was  concerned, 
might  be  injured  by  a  flood  of  water.  All  these  cases  had  hap- 
pened, and  involved  questions  of  great  importance,  and  ought  to 
be  considered.  Again,  the  mere  handling  of  cargo  sometimes 
caused  injury.  Many  kinds  of  goods  were  put  into  bags  which 
would  bear  twice  handling  — once  in  putting  into  the  ship  and 
another  time  in  discharging — but  they  would  not  bear  four  times 
handling,  and  would  therefore  be  injured  by  being  twice  discharged 
and  loaded.  It  might  be  well,  therefore,  to  split  up  the  resolution 
into  two  parts — the  damage  done  accidentally  and  that  done 
naturally. 

The  Chairman.  Is  it  quite  apart  from  the  question  of  loss  of 
market  ? 

Mk.  Baily.  Entirely. 

]\Ir.  Richards  observed  that  in  consequence  of  its  detention 
and  deterioration  a  cargo  was  sometimes  unfit  for  the  market  for 
which  it  was  intended,  and  that  involved  a  loss  of  cargo. 

I)i;.  Kahusen  said  he  supposed  the  right  point  of  this  matter 
was  adopted  in  the  Dutch  laws,  which  provided  that  the  damage 
done  to  goods  and  loss  of  freight  was  (Jeneral  Average  ordy  when 
the  vessel  had  not  been  l^ronght  into  the  port  of  refuge.  For  in- 
stance, it  Ii;i|i|)i'ii<-<1  tli.il  a  lai-ge  vessel,  drawing  a  great  deal  of 
water,  could  not  get  into  \\n'  porl,  and  had  to  be  unloaded  in 
lighters.  The  cargo  wliili',  in  the.  lighters  was  not  yet  saved,  it 
was  yet  in  danger,  and  was  therefore  (General  Average.  It  was  at 
llif  port  of  (listless,  but  it  was  not  wliliiu  flic  port,  of  distress.  In 
his  opinion  that  was  the  riglit-  jjoint.     There  might  be  a  high  sea, 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.  59 

and  the  lighters  niiglit  be  thrown  against  the  vessel,  causing  her 
damage. 

The  Chairman.  The  resolution  is  quite  clear:  it  is  '  in  '  a  port 
of  refuge. 

Mr.  Baily  said  several  gentlemen  had  asked  whether  this 
resolution  drew  any  distinction  between  the  damage  done  to  cargo 
in  the  way  he  had  mentioned  and  by  the  effects  of  climate — 
whether  it  might  not  be  advisable  to  split  the  resolution  into 
damage  happening  from  accidental  and  from  natural  causes. 
Take,  for  instance,  a  cask  of  provisions.  By  an  injury  to  a  cask 
of  pickled  provisions  the  pickle  might  escape  and  the  article 
would  be  damaged  :  tliat  was  an  injury  from  without.  A  cask  of 
dry  provisions  might  be  injured  simply  by  keeping :  and  that  was 
not  the  eflect  of  injury  from  without. 

Mr.  Richards  thought  if  the  resolution  said  '  damage  sustained 
by  the  cargo  in  consequence  of  discharging,'  that  would  include 
every  injury  which  the  cargo  might  sustain  while  unloading. 

Mr.  Tomlinson  explained  that  he  was  quite  unable  to  vote  on 
the  question  in  its  then  indefinite  shape  :  it  was  too  vague. 

The  original  resolution,  with  alteration  of  '  at  a  port  of  refuge  ' 
to  '  in  a  port  of  refuge  '  was  then  put  to  the  vote  and  affirmed. 

Mr.  Rathbone  moved  the  fifth  resolution  :  '  That  the  loss  sus- 
tained by  cutting  away  the  wreck  of  masts  accidentally  broken 
shall  not  be  allowed  in  General  Average.' 

Dr.  Rahusen  said  that,  in  his  opinion,  such  was  an  act  of 
General  Average.  It  was  a  sacrifice  for  the  common  benefit  in  case 
of  extreme  necessity.  There  were  a  great  many  cases  in  which 
cutting  away  of  wreck  of  masts  or  sails  or  booms  was  not  General 
Average,  but  there  were  cases  in  which  such  certainly  was  General 
Average.  When  in  a  hurricane  the  three  masts  were  blown  down 
the  hull  was  in  danger,  and  then  the  captain  cut  away  the  wreck 
of  those  masts ;  that  was  a  sacrifice  in  extreme  danger,  for  the 
common  benefit.  The  whole  value  of  the  masts  and  rigging  must 
not,  however,  be  allowed  in  General  Average,  but  only  that  portion 
which  was  sacrificed. 

Mr.  Baily,  as  a  matter  of  principle,  did  not  think  it  was 
General  Average.     A  nuiu's  property  endangered  his,  and  he  re- 


60  MAlirrJME   LEGISLATION. 

moved  that  dangerous  property.  How  could  tlie  man  charge  him 
for  removing  that  property  ?  It  was  unreasonable  to  ask  him  to 
pay.  The  dang-er  must  be  removed  ;  it  was  part  and  parcel  of  the 
original  injury  that  the  man  had  sustained.  So  far  as  principle 
went,  it  was  an  anomaly  to  ask  them  to  pay  for  removing  that 
which  was  the  cause  of  the  danger.  Again,  as  a  matter  of  expedi- 
ency, how  was  it  possible  to  estimate  the  value  of  an  article  that 
was  in  the  sea  in  a  gale  of  wind  ?  They  had  to  take  into  consider- 
ation the  remote  chance  which  there  was  of  their  being  able  to  get 
it  on  board  again,  and  the  probability,  after  they  had  got  it  on 
board,  of  their  being  able  to  realise  something  for  it  at  some  distant 
period.  On  the  ground  of  expediency,  also,  therefore,  he  would 
vote  against  allowing  such  a  loss  in  General  Average. 

Dr.  Rahusen  considered  that  in  principle  it  was  General  Aver- 
age. How  could  the  value  of  the  broken  mast  be  ascertained  ?  That 
was  only  a  matter  of  practice.  Really  the  value  of  the  broken 
mast,  whatever  it  was,  was  sacrificed,  and  therefore  it  was  General 
Average. 

Mr.  To:mlixson  observed  that  in  principle  it  w^as  General 
Average ;  but  as  a  matter  of  expediency  it  was  not  advisable  to 
consider  it  so. 

Mr.  Bradford  quite  agreed  with  My.  Baily  that  it  was  not 
General  Average  in  practice  or  in  principle.  It  was  utterly  impos- 
sible to  determine  the  value  of  the  wreck  cut  away  ;  and  as  far  as 
American  law  Avas  concerned,  the  custom  was  wholly  against  it 
throughout  the  United  States.  He  had  never  allowed  it  and  he 
never  intended  to  do  so. 

The  motion,  on  being  put,  was  carried,  with  only  two  dissen- 
tients ;  and  the  Chairman  expressed  his  regret  for  his  Dutch  and 
German  friends  (who  voted  against  it),  and  hoped  such  a  very 
decided  expression  of  opinion  on  the  subject  would  not  be  without 
its  effects. 

"Mr.  Katiihone  moved  :  'Tliat  the  expense  of  warehouse  rent 
at  a  port  of  refuge  on  cargo  necessarily  discharged  there,  the  ex- 
pense of  re-shipping  it,  and  tlie  outward  port  charges  at  that  port 
sliall,  wlicii  llic  sliip  carries  on  the  cai'gfj  from  that  port,  be  allowed 
ill  (icueral  Average.' 


INTERNATIONAL  LAW   OF  GENERAL   AVERAGE.  61 

Mr.  LAMroRT  said  lie  thought  he  recollected  a  decision  in  our 
English  Courts  that  those  charges  were  General  Average. 

Mr.  Baily  said  there  was  no  decision  on  the  point,  but  there 
were  dicta  of  the  Judges  to  that  effect. 

Mr.  Leathley  said  in  principle  he  recognised  the  law,  but 
there  was  not  uniformity  with  reference  to  the  law. 

Mr.  Richards  was  of  opinion  that  these  charges  were  not 
allowable  in  General  Average.  When  the  vessel  and  cargo  were 
in  safety  at  the  port  of  refuge  the  General  Average  ceased. 

Mr.  Baily  was  of  opinion  that  all  these  charges  should  be 
allowed  in  General  Average.  Physical  safety  was  the  end  in  some 
General  Average  acts  only  ;  in  most  cases  the  end  was  the  arrival 
of  the  ship  and  cargo  at  their  destination  when  that  was  possible. 
Towards  this  end,  discharging  a  cargo,  taking  care  of  it  whilst 
discharged,  and  re-shipping  it  were  but  steps  ;  but  for  this  end  it 
was  not  necessary  to  discharge  at  all  in  many  cases.  The  real 
object  of  putting  into  a  port  of  refuge  even  is  not  to  repair  the 
ship,  but  to  enable  her  to  complete  the  voyage.  If  she  could 
complete  the  voyage  wathout  being  repaired  it  would  not  be  justifi- 
able to  put  into  port.  Terminating  the  General  Average  at  the 
discharge  of  the  cargo  was  cutting  the  General  Average  act  in  half. 

This  resolution  having  been  carried,  Mr.  Rathbone  moved  the 
seventh :  '  That  the  damage  done  to  ship,  cargo,  and  freight  by 
carrying  a  press  of  sail  shall  not  be  allowed  in  General  Average.' 

The  Chairman  asked  how  such  damage  could  arise. 

Mr.  Baily  explained  that  if  a  vessel  was  on  a  lee  shore  she  had 
to  carry  a  press  of  sail ;  and  the  consequence  was  that  her  masts, 
spars,  sails,  and  even  the  ship  herself,  were  sometimes  strained  and 
damaged.  A  press  of  sail  might  likewise  be  carried  to  escape  from 
a  pirate  or  pursuit  by  an  enemy. 

After  a  discussion  the  motion  was  put  to  the  vote  and  was 
carried. 

It  was  then  moved  :  '  That  wages  and  provisions  for  the  ship's 
crew  shall  be  allowed  to  the  shipowner  in  General  Average,  from 
the  date  on  which  his  ship  reaches  a  port  of  refuge  under  average 
until  the  date  on  which  she  leaves  it — the  allowance  for  provisions 
to  be  calculated  at  a  fixed  rate.' 


G2  MARITIME   LF.GISLATTON, 

Mr.  W.  H.  Joxes,  of  Liverpool,  tlionght  there  was  some  am- 
biguity as  to  the  expression  '  under  average.'  If  a  ship  put  into  a 
port  to  get  new  masts,  after  having  had  to  cut  them  away  in  a 
hurricane,  the  expenses  would  be  allowed;  but  if  the  ship  sprung 
a  leak,  and  was  detained  for  some  time  to  be  repaired,  that,  he 
imagined,  would  not  be  allowed  in  General  Average. 

Me.  Baily  said  many  ships  came  in  from  the  Baltic,  and  ran 
into  a  port  for  shelter,  to  avoid  threatening  weather :  if  they  ad- 
mitted that  into  General  Average,  when  there  was  nothing  else 
wrono-  with  the  vessel,  he  apprehended  that  was  not  the  real 
meaning  of  the  resolution. 

It  was  then  agreed  to  amend  the  resolution  by  substituting  for 
the  words  '  under  average  '  the  words  '  in  distress.' 

Mr.  Bradford  said  if  he  was  not  mistaken  they  would,  accord- 
ing to  the  wording  of  the  resolution,  allow  the  wages  and  provisions 
of  all  hands,  whether  they  were  employed  or  not.  That,  he  thought, 
would  be  unjust.  The  proper  rule  was  to  allow  the  wages  and  pro- 
visions of  those  men  who  were  retained  in  the  ship  by  the  master ; 
but  it  frequently  occurred  that,  after  going  into  a  port  of  refuge, 
some  of  the  men  were  discharged  and  some  got  other  employments. 
The  vessel  was  not  at  the  expense  of  food  for  these  men,  and  there- 
fore no  charge  should  be  made  for  it.  In  the  United  States  the 
law  was  to  charge  provisions  and  wages  from  the  day  on  which  the 
ship  bore  up  for  the  port  of  refuge.  Although  he  would  vote  for 
the  resolution,  he  thought  it  should  go  further:  the  expenses  should 
be  allowed  from  the  time  the  vessel  makes  an  alteration  in  her 
course  to  bear  up  for  the  port  of  refuge. 

Hon.  Judge  Marvin  said,  in  the  United  States  they  adopted 
the  principle  of  this  resolution  ;  and  he  believed  they  obtained  it 
from  England  herself.  But  however  it  might  be  English  law,  it 
turned  out  not  to  be  Lloyd's  law.  By  Lloyd's  law  these  wages 
and  provisions  were  not  allowed  in  the  General  Average  act;  they 
were  not  allowed  by  the  underwriter  upon  the  ship  ;  they  fell 
exclusively  upon  the  shipowner;  mid  when  the  shipowner  was 
prepared  to  pay  the  full  premium,  why  was  he  not  liiUy  indemni- 
fied ?  Why  should  he  not  be  fully  protected,  either  u})on  the 
General  Averagt;  or  uj)on  the  insurance  ? 


INTERNATIONAL   LAW   OF   GENERAL    AYEHAOE.  03 

Mr.  Baily  thought  it  was  necessary  that  those  who  invariably 
shut  out  the  expenses  from  General  Average  should  say  something 
on  the  matter.  He  himself  tliought  it  was  not  allowable  in 
principle ;  he  could  draw  no  distinction  between  the  wages  and 
provisions  of  the  crew  and  the  wear  and  tear  of  the  ship  during 
tlie  same  period.  It  was  one  of  those  charges  which  attached  to 
the  shipowner — one  of  those  charges  which  it  must  be  held  he  had 
taken  into  consideration  in  entering  into  the  contract.  It  was  a 
casualty  just  like  the  wear  and  tear  of  the  ship,  which  was  of  course 
greater  the  longer  the  voyage  was  protracted ;  but  he  did  not 
think,  if  they  were  to  aim  at  uniforrait}'-,  that  he  could  convert  the 
whole  world  to  his  way  of  thinking ;  and  therefore  he  accepted  the 
resolution  as  a  compromise  to  promote  that  uniformity.  If  they 
went  as  far  as  Mr.  Bradford  suggested  they  would  get  into  endless 
disputes  as  to  when  the  dividing-point  in  the  course  was  reached 
— as  to  when  the  ship  left  the  line  of  navigation  proper  for  reach- 
ing her  port  of  destination,  i.e.  when  she  entered  upon  her  course 
for  a  port  of  refuge.  If  they  would  accept  the  resolution  as  a 
compromise  between  the  two  opinions  he  would  be  inclined  to  vote 
for  it. 

M.  ExGELS  did  not  think  they  should  make  any  compromise  in 
that  which  they  did  not  agree  to  be  right  in  principle.  He  was, 
however,  in  favour  of  the  resolution,  not  as  a  compromise  but  as  a 
matter  of  principle. 

Mr.  Baily  observed  that  indirectly  the  English  courts  had 
decided  that  where  a  vessel  put  into  a  port  of  refuge  the  wages 
and  provisions  Avere  not  allowable. 

The  motion,  on  being  put  to  the  vote,  was  affirmed  by  a  majority. 

]\tR.  Rathbone  moved  the  ninth  resolution  :  '  That  the  contri- 
buting values  of  ship,  freight,  and  cargo  shall  be  their  actual  values 
to  the  owner  of  them  at  the  time  when  they  became  liable  for  the 
General  Average.  That  in  fixing  the  value  of  freight,  the  wages 
and  port  charges  up  to  the  date  of  the  General  Average  act  shall 
not  be  deducted,  and  the  wages  and  port  charges  after  that  date 
shall  be  deducted  from  the  gross  freight  at  the  risk  of  the  ship- 
owner.' 

At  the  suggestion  of  the  Chairman,  who  observed  that  gen- 


64  MARITIME   LEGISLATION. 

tlemen  might  vote  in  favour  of  one  part  and  against  the  other, 
Mr.  Rathbone  first  proposed  the  opening  clause  of  the  resolution. 

Mr.  Baily  thought  there  were  some  difficulties  in  the  way  of 
the  resolution.  Suppose  some  of  the  cargo  of  a  ship  had  been 
thrown  overboard,  and  afterwards  the  ship  puts  into  a  port  of  re- 
fuse and  incui-s  expenses  there,  which  are  paid  ;  after  which  she 
proceeds  on  her  voyage,  and  subsequently  goes  to  the  bottom. 
She  does  not  owe  for  the  jettison  till  the  end  of  the  voyage  :  but 
what  about  the  expenses  actually  incurred  ? 

The  Chairman  said  a  cargo  might  have  a  certain  conjectural 
value  if  it  reached  a  market  at  a  given  period;  but  when  the 
vovage  was  actually  completed  it  was  found  that  that  which  had 
great  invoice  value  was  of  no  value,  on  account  of  a  change  in  the 
market ;  should  the  person  get  off  from  contribution  on  the  value 
of  the  article  at  the  time  the  act  was  done,  which  was  considered  an 
act  for  the  benefit  of  all  ? 

Mr.  Leathley  said  there  was  a  question  as  to  the  value  of  the 
goods  '  where,'  as  well  as  '  when,'  for  goods  would  have  very  different 
values  in  different  places.  The  port  of  destination  was  the  place 
for  which  the  cargo  was  intended,  and  it  might  not  be  so  valuable 
in  any  other  port  as  at  the  place  of  destination. 

Mr.  Richards  thought  the  port  of  destination  was  the  proper 
place  for  the  average  to  be  made  up.  If  taken  to  the  port  for 
which  it  was  intended  the  cargo  might  be  valuable ;  but  at  another 
place,  where  there  was  no  market,  it  might  be  comparatively 
worthless.  A  valuation  at  an  intermediate  port  could  never,  there- 
fore, be  a  proper  valuation. 

Mr.  Baily  said  there  were  always  two  questions  to  be  considered 
in  ascertaining  a  valuation — how  much  you  could  buy  the  article 
for,  and  liow  much  you  could  sell  it  for.  And  he  conteaded  that 
the  value  of  a  ship  was  her  value  to  the  owner. 

!Mk.  IIarpek  said  the  value  of  goods  to  tlie  owner  was  that  at 
which  they  would  sell  if  they  liad  arrived  at  tlie  time  when  they 
should  have  arrived — the  proper  time  for  the  U'rmiuation  of  the 
voyage  if  these  interni|)l  inns  h.-id  u<it  lukm  phic(^;  not  when  the 
goods  did  in  fact  arrive,  after  a  protract(.'d  voyage.  lie  thought 
the  value  of  the  goods  to  the  owner  during  the  whole  voyage  was 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.  05 

the  value  wliich  he  conteraplated  they  would  have  brought  wheu 
he  made  the  venture.  He  made  the  venture  for  a  certain  market, 
and  he  calculated  the  vessel  would  have  arrived  within  a  certain 
time  for  that  market. 

Dr.  Rahusen  said  the  ship  had  not  always  the  same  destination 
as  the  cargo,  and  the  ship  would  not  be  at  her  port  of  destination 
when  the  cargo  had  arrived  there;  so  that  it  would  not  be  just  to 
take  the  value  of  the  goods  at  the  port  of  destination.  If  there 
was  a  port  of  refuge  into  which  the  vessel  put,  they  should  take 
the  value  of  the  goods  at  that  port.  The  freight  was  only  earned 
at  the  port  of  destination,  and  if  the  vessel  did  not  arrive  there 
no  freight  was  paid.  The  wages  should  also  be  deducted,  for  if  the 
ship  did  not  arrive  at  the  port  of  destination  no  wages  were  paid, 
and  no  Particular  Average  on  freight  was  paid. 

Mk.  "J'omlinson  thought  they  had  no  safe  ground  to  go  upon, 
except  at  the  port  of  destination,  and  he  should  be  quite  prepared 
to  leave  that  question  in  the  hands  of  the  average  adjuster. 

Mr.  Rathbone.  Perhaps  instead  of  '  port  of  destination '  '  ter- 
mination of  the  adventure  '  would  be  better. 

The  Chairman  said  the  point  seemed  to  be  this  :  whether  the 
values  should  be  at  the  port  of  destination,  with  or  without  taking 
into  view  the  depression  from  accident  or  changes  of  circumstances 
occurring  after  the  time  the  General  Average  act  was  executed. 

M.  Engels  said  the  voyage  was  not  at  an  end  until  the  ship 
and  cargo  came  into  the  port  of  destination,  and  he  considered  that 
the  values  should  be  taken  when  the  vessel  arrived. 

The  Chairman.  Would  '  the  termination  of  the  adventure  ' 
include  the  natural  or  assumed  destination  ? 

^Ir.  Baily.  Whatever  they  agree  upon  with  regard  to  the 
ultimate  end  of  the  adventure,  the  value  in  some  cases  mav  be  less 
than  the  expenses. 

The  Chairman  asked  if  it  ever  happened  that  the  liability  was 
more  than  the  ad  valorem  value  of  the  goods  ? 

Mr.  Baily  said  the  property  was  changed  in  value,  and  they 
ought  not  to  apportion  it  according  to  the  actual  value.  It  would 
be  very  hard  if,  when  expenses  had  been  incurred  at  a  port  of 
refuge,  and  reasonably  incurred,  and  the  vessel  was  subsequently 

F 


G6  MARITIME   LEGISLATION. 

wrecked,  tliat  because  he  might  be  unfortunate  enough  to  have 
some  of  his  property  saved,  worth  when  saved  say  6001,  he  should 
be  compelled  to  pay  1,000/.,  whilst  the  man  who  was  lucky  enough 
to  save  nothing  would  have  nothing  to  pay.  If  the  amount 
ultimately  saved  came  down  below  the  expenses  incurred,  it  would 
be  very  difficult  to  settle  it. 

Mr.  Eathbone  inquired  if  there  was  anything  objectionable  in 
the  principle  adopted  in  England,  to  make  the  best  of  a  bad  job. 
The  value  of  the  property  finally  saved  is  set  off  against  the  amount, 
and  the  balance  distributed  over  the  estimated  value  of  the  property, 
as  if  the  accident  had  not  happened. 

The  Chairman  said  there  really  were  two  questions  before  them, 
and  that  they  could  not  adopt  the  resolution  as  it  stood,  as  it  was 
not  clear  what  it  meant,  and  as  it  would  leave  as  many  questions 
behind  as  it  disposed  of.  But  they  all  seemed  to  agree  that  the 
value  must  be  taken  to  be  the  value  of  the  article  as  at  the  termi- 
nation of  the  adventure  ;  but  subject  to  this,  which  was  open  to  a 
difft'rence  of  opinion,  namely,  was  the  value  of  the  ship  to  be 
affected  or  not  by  the  depreciation  occurring  subsequent  to  the 
time  when  the  act  of  General  Average  arose  ? 

!Mr.  Rathbone  then  substituted  for  the  motion,  which  he  had 
previously  submitted,  the  following  :  '  When  the  amount  of  the 
expenses  is  less  than  the  value  of  the  property  finally  saved,  the 
contributing  value  of  ship,  freight,  and  cargo  shall  be  their  value 
to  their  owners  at  the  termination  of  the  adventure.' 

Dr.  Hahusen.  Do  you  mean  by  '  freight '  only  the  freight  of 
cargo,  or  also  the  freight  of  passengers  ? 

Mk.  Haiiii'.onk.  That  is  a  very  different  question.  It  is  one  of 
1ho.se  questions  which  we  cannot  now  raise,  for  if  we  once  raise 
them  we  shall  be  settled  for  this  day  and  to-morrow  too.  AVe  must 
take  it  as  freight  as  it  is  understood  in  each  country. 

Tin;  ( 'ii.MKMAN.  1  don't  know  if  Ihrrc  is  any  example  of 
throwing  a  passiuiger  overboard  for  the  safety  of  tlie  rest. 

A   AIkmbeh.  There  has  been  one  instance,  at  least,  in  the  case 

of    .lolKlll. 

Ml:.  II A  riiiKj.NK  begged  foiudve  I  he  I'esoliil  ion  as  he  had  already 
siiliiiiiited  it  ;  and  also  '  Tliat  when  llie  amount  of  exjienses  exceeds 
tlie  \;iliie  nC  jirojiei'lv  fnially  saved,  the  excess  of  ex]K'nscs  over  pro- 


IXTKllNATIONAL    LAW   OF   GENERAL   AVEUAfJi:.  OV 

ceeds  shall  be  apportioned  as  if  the  whole  property  had  reached  its 
destination.'  He  also  proposed  a  third  resolution  :  '  That  in  fixing 
the  value  of  freight,  the  wages  and  port  charges,  up  to  the  date  of 
the  General  Average  act,  shall  not  be  deducted  ;  and  the  wages  and 
port  charges  after  that  date  shall  be  deducted  from  the  gross  freight 
at  the  risk  of  the  shipowner.' 

Mk.  Baily  said  the  last  resolution  contemplated  the  ordinary 
case  of  freight  being  paid  at  the  end  of  the  voyage;  but  it  was 
now  frequently  the  case  that  a  portion  of  the  freight  was  paid  at 
the  port  of  shipment  absolutely.  The  question  was  whether,  if  the 
shipowner  had  only  a  portion  of  the  freight  at  risk,  they  should 
take  off  that  portion  all  tlu'  ]i(>rt  charges  for  the  voyage  or  oidy 
part  of  tlieni. 

^Ir.  Kichahds  said  the  owner  had  only  a  certain  amount  of 
money  to  put  into  his  pocket  when  the  ship  arrived ;  but  he  had 
alreatly  been  paid  money  on  account  of  the  freight,  and  it  would  be 
unjust  that  the  entire  amount  of  the  wages  incurred  subsequently 
to  the  General  Average  act  should  be  deducted  from  the  small 
amount  which  he  would  receive  at  the  end  of  the  voyage. 

After  some  conversation,  the  three  motions  were  put  to  the  vote, 
and  all  of  them  were  carried  by  majorities. 

Hon.  Judge  Marvin  said  it  occurred  to  him  that  the  I'esolutions 
which  they  had  voted  upon  should  now  be  refen'ed  to  a  committee, 
which  should  take  them  up,  draft  them  into  clear  precise  language, 
and  introduce  the  various  necessary'  qualifying  terms.  The  language 
into  which  the  resolutions  should  be  put  should  be  carefully  con- 
sidered, and  afterwards  they  should  be  recommended  by  the  com- 
mittee for  adoption.  The  resolutions  ought  to  undergo  careful 
revision  at  the  hands  of  the  committee,  which  ought  to  set  to  work 
as  soon  as  may  be,  in  order  that  the  results  of  their  deliberation 
might  be  circulated  as  soon  as  possible. 

Mk.  Ratiihonk.  I  think  Judge  Marvin  means  that  we  should 
not  send  forth  as  the  resolutions  of  this  meeting  abominalily  1  ad 
Knglish. 

The  Chairman  remarked  that  th(>  functions  of  tlu-  committee 
would  be  to  put  the  resolutions  in  more  ])recise  language  where 
such  was  necessary. 

F  2 


68  MARITIME   LEGISLATION. 

^1r.  Baily  said  they  had  not  yet  spoken  to  the  practical  way 
of  carrying  out  the  objects  of  the  resolutions.  Whilst  they  were 
at  Glaso-ow  they  ought  to  discuss  what  were  the  best  means  of 
carrying  out  their  resolutions,  for  if  they  considered  that  they  had 
done  their  work  when  their  votes  were  given  it  was  a  great  mistake. 
"When  they  came  to  add  up  the  votes,  they  might  find  that  a  mere 
numerical  majority  was  not  of  equal  weight  with  the  names  of  the 
gentlemen  voting  in  the  minority. 

The  Chairmax  said  there  was  one  thing  which  he  hoped 
gentlemen  would  think  of  before  they  came  to  the  discussion  to- 
morrow, whether  there  was  any  objection,  if  it  were  thought 
advisable,  that  the  names  of  the  voters  should  be  given.  Gentle- 
men might  not  wish  their  names  to  be  j)ublished  ;  but  there  was 
no  doubt  it  would  be  advisable  to  give  the  names  of  such  as  were 
agreeable. 

Mr.  Baily  said  each  knew  what  he  had  done ;  and  the  public 
wished  to  know  the  value  of  the  names  which  had  voted.  Lloyd's 
would  of  course  pay  more  attention  to  some  names  than  to 
others. 

Mr.  Rathbone  thought  it  was  understood  from  the  first  that 
that  would  be  the  case.  There  were  some  gentlemen  who  had 
taken  part  in  the  proceedings  who  represented  large  bodies,  and 
in  whose  judgment  everybody  had  great  confidence,  while  there 
were  others,  perhaps,  who  had  not  the  same  experience. 

;Mr.  Leathley  explained  that,  although  he  was  connected  with 
Lloyd's,  he  simply  voted  in  his  individual  capacity,  and  not  as  in 
any  way  representing  them. 

Mr.  Baily  also  suggested  that,  before  the  names  were  published, 
gentlemen  should  have  an  opportunity  of  explaining  whether  they 
voted  on  the  ground  of  principle  or  expediency,  for  he  himself  had 
voted  for  resolutions  on  different  grounds. 

Tlic  suggestions  of  Mr.  Baily  were  acceded  to  ;  and  a  committee 
— consisting  of  Lord  Neaves,  Hon.  Judge  Marvin,  Mr.  Baily,  Mr. 
Richards,  Mr.  Harper,  and  Mr.  Ilathl)on(> — was  appointed  to  con- 
sider the  resolutions,  the  committee  to  rcjiort  the  results  of  their 
deliberations  at  the  meeting  to-morrow   ('rinn-sday). 

The  section  then  iMljourned. 


I 


INTEllNATIONAL    ].A\V    UF   (JENEUAL   ANllKAi  iK.  UO 


TItursclaij,  Septemher  27. — Lord  Xkaves  presiding. 

A  lonfy  discussion  took  place,  in  which  ahnost  all  the  gentlemen 
present  took  part.  The  purport  of  the  discussion  was  the  wording 
of  a  resolution  which  should  practically  exclude  from  General 
Average  '  voluntary  stranding,'  without  excluding  it  on  the  ground 
that  it  was  wrong  in  principle  to  allow  it.  Even  those  who  ad- 
vocated the  admission  of  the  loss  on  principle  felt  the  practical 
abuse  it  might  lead  to;  and  ultimately  the  following  resolution, 
proposed  by  Lord  Neaves,  was  agreed  to,  in  the  place  of  resolution 
No.  1,  negatived  on  Tuesday:  'That,  as  a  general  rule  in  the 
case  of  the  stranding  of  a  vessel  in  the  course  of  her  voyage,  the 
loss  or  damage  to  ship,  cargo,  or  freight  shall  not  be  tlie  subject  of 
General  Average,  but  Avithout  prejudice  to  such  a  claim  in  excep- 
tional cases,  upon  clear  proof  of  special  facts.' 

The  meeting  then  proceeded  to  take  into  consideration  as  to 
how  and  in  what  form  the  business  now  concluded  by  this  Inter- 
national Congress  should  be  brought  before  the  various  Chambers 
of  Commerce,  and  the  mercantile  public  generally. 

Judge  Marvix  read  a  short  statement  of  his  views  on  the  sub- 
ject, which,  after  a  discussion,  in  which  the  delegates  from  Holland 
and  Denmark,  Messrs.  Leathley,  Richards,  and  Baily  took  part, 
ended  in  the  adoption  of  the  following  resolutions:  — 

1.  *  That  the  meeting  hereby  requests  the  Council  of  the 
Association  to  assist  b}^  their  counsels  such  person  or  persons  as 
may  be  approved  of  by  them,  in  drawing  up  a  Bill,  with  a  view  to 
its  being  enacted  into  a  law  by  the  legislative  authorities  of  the 
several  nations  of  the  world,  which  Bill  shall  define,  as  clearly  as 
may  be,  the  term  "  General  Average,"  and  describe  more  or  k'ss  fully 
the  cases  intended  to  be  included  within  the  definition,  and  which 
shall  also  specify  the  nature  of  the  loss,  damage,  or  expense 
allowable  in  General  Average,  and  the  principle  on  which  the 
amount  of  the  loss,  damage,  or  expense  shall  be  ascertained;  a^so, 
furnish  a  rule  or  rules  for  ascertaining  the  contributory  values  of 
the  interests  concerned,  and  which  sliall  also  contain  such  matters 
as  the  person  or  persons  drawing  up  the  Bill  may  think  it  advisable 


70  MARITIME   LEGISLATION. 

to  insert.  That  upon  sucli  Bill  being  drawn  up  and  printed,  copies 
thereof  shall  be  transmitted  to  the  several  Chambers  of  Commerce, 
Boards  of  Underwriters,  Shipowners'  Associations,  and  other  com- 
mercial societies  in  different  parts  of  the  world,  accompanied  by  a 
copy  of  this  resolution,  and  a  request  to  them  to  examine  and 
return  the  said  copies,  with  such  alterations  or  amendments  as 
thev  may  think  proper  to  make  therein,  within  six  months  from 
the  time  of  the  receipt  thereof.  That,  upon  the  return  of  the  said 
copies,  or  upon  the  expiration  of  the  said  six  months,  the  said  Bill 
shall  be  revised  by  the  person  or  persons  drawing  up  the  same, 
enlightened  by  the  information  acquired  as  aforesaid.  That,  upon 
the  Bill  being  perfected  in  the  mamier  aforesaid,  it  be  recommended 
to  the  legislative  authorities  of  all  commercial  nations,  to  enact 
the  same  into  a  law.' 

2.  '  That,  in  the  meantime,  the  meeting  resolves  to  circulate  as 
widely  as  possible,  for  general  information,  the  rules  embodied  in 
the  resolutions  udiich  have  been  passed  by  the  meeting,  as  those 
which,  under  a  uniform  system,  it  might  be  desirable  to  consider.' 

The  business  of  the  Congress  being  thus  concluded,  it  was 
moved  by  Judge  Marvin,  seconded  by  Mr.  Leathley  of  Lloyd's, 
and  carried  unanimously  :  '  That  this  meeting  offer  their  best  thanks 
to  Lords  Brougham  and  Neaves  for  their  kindness  in  acting  as 
Chairmen,  and  for  the  able  manner  in  which  they  have  assisted  its 
deliberations.'  In  seconding  tlie  resolution,  Mr.  Leathley  said 
that  Lloyd's  took  a  warm  interest  in  the  question  under  discussion, 
and  in  the  results  tliat  would  follow  this  meeting  at  Glasgow. 

A  vote  of  thanks  to  Judge  Marvin  and  to  the  other  foreign 
delegates  was  also  passed,  and  the  meeting  broke  up. 

Tl  iii.'iy  not  Le  out  of  place  to  reprint  here  the  resolu- 
tions which  were  passed  at  a  meeting  of  the  Committee  for 
man.'iLnii.Lf  the  aflhirs  of  Lloyd's  (^n  the  lOlli  of  October, 
IbGO,  viz.  :— 

1.  ' 'I"Ii;il  1  lie  I  li;iiiks  (iC  this  ('(111111111  Ice  !)(•  given  to  the  several 
gciitloincii  wild.  ;ii  .'i  great  s.'icrilicc  of  personal  convenience,  have 
fotric  fVfiiii  uljroiul  l(j  attend  the  niecliiig  at  Glasgow  on  the  subject 


IXTKRNATIONAL    LAW   01-    (iKNKKAL    AM:UA(  iK.  71 

of  General  Average,  and  whom  llic  coniinittm- had  tliu  honour  of 
meeting  by  a  deputation  of  tlu'ir  body.' 

2.  '  That  this  resolution  be  communicated  to  each  of  the 
gentlemen,  and  that  they  be  assured  at  the  same  time  that  this 
committee  take  a  strong  interest  in  the  subject  discussed  at  Glasgow 
and  that  they  will  gladly  co-operate  in  the  endeavour  to  carry  out 
the  very  desirable  object  sought  to  be  attained.' 

The  di-at'tsmau  to  whom  originally  the  task  of  iVaiiiiiig 
a  Bill — as  a  stej)  towards  the  formation  of  a  code  to  be 
adopted  in  the  different  countries — was  entrusted,  became, 
after  his  recovery  from  a  serious  illness,  so  overburdened 
with  other  engagements,  that  he  was  altogether  disabled 
from  undertaking  the  work,  and  the  difficulty  which  in 
consequence  arose  in  procuring  a  competent  substitute 
caused  such  a  delay  in  the  preparation  of  the  Bill  that  it 
was  not  drawn  before  the  spring  of  1862,  when  it  appeared 
in  the  following  terms,  viz.  : — 

BBAFT  OF  A   BILL 
intituled 

An  Act  to  Consolidate  and  Amend  the  Laws  relating  to 
General  Average  Sacrifices  and  General  Average 
Contributions. 

Be  it  enacted  by  the  Queen's  most  Excellent  Majesty,  by  and  with 
the  Advice  and  Consent  of  the  Lords  Spiritual  and  Temporal,  and 
Commons,  in  this  present  Parliament  assembled,  and  by  the 
Authority  of  the  same,  as  follows: 

Interpretation  Clause. 

1.  For  the  Purposes  of  this  Act  (if  not  inconsistent  with  the 
Reason  of  the  Thing  or  the  Context),  the  following  Terms  and 
J^hrases  shall  have  the  respective  Meanings  hereinafter  assigned 
to  them  ;  (that  is  to  say,) 

'Master'  shall  include  every  Person  having  Command  or 
Charge  of  any  Ship: 


72  MARITIME   LEGISLATION. 

'  Seamen'  and  '  Crew  '  shall  have  the  same  Meaning,  and  shall 
each  include  every  Person  employed  or  engaged  in  any 
Capacity  on  board  any  Ship  : 

*  Ship '  shall  include  Man-of-War,  Privateer,  Merchantman, 
and  every  other  Description  of  public  or  private  Craft : 

'  The  Ship '  shall  mean  only  the  particular  Ship  in  respect  to 
which  the  General  Average  Loss  in  question  shall  have 
been  made  or  incurred  : 

'  Cargo '  shall  include  every  Description  of  Wealth  on  board 
the  Ship  except  the  Ship's  Apparel  and  Outfit : 

'  Property '  shall  include  the  Ship,  her  Apparel  and  Outfit,  the 
Freight  and  the  Cargo,  and  every  Article  of  Wealth  at 
Hazard  in  the  Adventure  in  which  the  Ship  shall  have  been 
employed : 

'  Sacrifice '  shall  comprise  the  Destruction  or  Damage  of  or 
Injury  to  any  Article  of  Wealth  : 

'  General  Average  Act '  shall  comprise  both  General  Average 
Losses  and  General  Average  Expenditures  or  Disburse- 
ments : 

'  General  Average  Act'  and  '  General  Average  Sacrifice  '  shall 
have  the  same  Meaning : 

'  General  Average  Sacrifice '  shall  mean  a  prudent  and  extra- 
ordinary Sacrifice  of  Property  made  by  the  Master  in  order 
to  avert  an  unusual  and  imminent  Peril  from  the  Ship, 
Freight,  and  Cargo,  such  Property  so  sacrificed  as  aforesaid 
not  having  been  the  Cause  of  such  Peril  as  aforesaid,  nor 
having  been  expressly  stipulated  for  by  the  Parties  to  the 
Maritime  Adventure  in  respect  to  which  such  Sacrifice  as 
aforesaid  shall  liave  been  made : 

'  General  Average  Loss  '  shall  denote  the  Loss  sustained  by  any 
]*erson  in  consequence  of  the  I'erformance  of  a  General 
Average  Act  or  Sacrifice  : 

'  General  Average  Expendituri' "  shall  denote  any  Debt  or 
Liability  pro]iorly  contract I'd  in  respect  to  a  General 
Average  Sacrilicc  ]>y  Ihc  Maslci-  of  the  Ship  with  a  IV'rson 
not  liaving  any  Property  at  liisk  in  the  Adventure  : 

'(Jf-noral   Avoragc  r\)iif rihution  "  shall  denote  that  Conipensa- 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.  73 

tion  whicli  the  Party  who  shall  have  suffered  a  General 
Average  Loss  sliall  be  entitled  to  receive  from  the  Owners 
of  the  Ship,  Freight,  and  Cargo : 
'  Unusual  Peril '  shall  comprise  Enemies,  Pirates,  and  formid- 
able Robbers;  and  shall  also  comprise  Storms,  Swells, 
Shoals,  Quicksands,  Lee  Shores,  Rocks,  Cliffs,  and  the 
Ship's  straining  or  taking  the  Ground,  provided  that  this 
latter  Class  of  Perils  shall  not  have  been  incident  to  the 
usual  Course  of  the  Voyage  in  prosecuting  which  the  Ship 
shall  have  been  employed  at  the  Time  when  the  Sacrifice  in 
question  shall  have  been  made. 

General  Pkovisions. 

2.  If  the  Majority  of  the  Seamen  on  board  the  Ship  shall 
concur  in  performing  an  Act,  which,  if  done  with  the  Master's 
Consent,  would  have  been  a  General  Average  Act,  such  Act  so 
performed  by  the  Majority  of  the  Seamen  shall  be  deemed  to  be  a 
General  Average  Act  within  the  Meaning  of  this  Act. 

3.  That  all  such  Provisions  of  this  Act  as  relate  to  a  Ship 
shall  (as  far  as  is  practicable)  be  deemed  equally  to  apply  to  Boats 
of  every  Description,  whether  the  same  shall  have  been  propelled 
by  Oars  or  not. 

4.  That  every  Person  who  shall  suffer  a  General  Average  Loss 
shall  be  entitled  to  receive  from  the  Persons  whose  Property  shall 
have  been  at  Risk  in  the  Adventure  in  respect  to  which  such 
General  Average  Loss  shall  have  been  incurred  a  Sum  of  Money 
equivalent  to  the  Loss  (if  any),  properly  and  necessarily  sustained 
by  him  in  respect  of  such  General  Average  Loss,  and  such  Sum 
shall  be  contributed  for  by  the  Persons  in  respect  of  whose 
Property  such  General  Average  Act  as  aforesaid  shall  have  been 
performed  in  proportion  to  the  Values  of  their  respective  Interests 
in  such  Property  as  aforesaid,  and  such  Values  shall  be  estimated 
in  the  Manner  hereinafter  directed. 

5.  A  General  Average  Expenditure  shall  give  to  the  Person 
making  the  same  a  Right  to  a  General  Average  Contribution, 
irrespectively  of  the  final  Success  or  Failure  of  the  Adventure. 

G.  Subject   to    the    Provisions  of  this    Act,  all    Acts,  Losses, 


74  MARITIME    LEGISLATION. 

Expenses,  Debts,  or  Liabilities  which  are  either  preliminary  or 
necessarily  incidental  to  a  General  Average  Sacrifice  or  Loss,  if 
such  Acts,  Losses,  Expenses,  Debts,  or  Liabilities  could  have  been 
foreseen  by  the  Master  or  other  Person  authorised  by  this  Act  to 
make  a  General  Average  Sacrifice  as  the  natural  and  probable 
Consequence  of  such  Sacrifice,  shall  be  deemed  to  be  General 
Average  Acts  within  the  Meaning  of  this  Act. 

Jettison. 

7.  Subject  to  the  Provisions  of  this  Act,  a  Jettison  shall,  for 
the  Purposes  of  this  Act,  be  defined  to  be  a  prudent  and  extraor- 
dinary throwing  overboard  or  Sacrifice  of  Property  which  shall 
have  been  on  board,  done  or  made  by  or  by  the  Direction  of  the 
Master  of  the  Ship,  in  order  to  avert  an  unusual  and  imminent 
Peril  from  the  Property  at  Risk  in  the  Adventure. 

8.  A  Jettison  shall  be  deemed  to  be  a  General  Average  Act 
within  the  Meaning  of  this  Act. 

9.  The  Loss  or  Damage  necessarily  done  to  Property  in  conse- 
quence of  a  Hole  having  been  cut  in  the  Ship  in  order  to  get 
Goods  or  Stores  out  for  the  Purpose  of  a  Jettison,  and  the  Loss  or 
Damage  of  Goods  occasioned  by  their  being  washed  overboard  or 
otherwise  injured  after  having  been  brought  on  Deck  either  for  the 
Purpose  of  being  jettisoned  themselves,  or  in  order  that  less 
valuable  Goods  might  be  reached  in  order  to  be  jettisoned,  and  the 
Loss  or  Damage  of  any  Part  of  the  Property  on  board  on  account 
of  the  Vessel's  shipping  AVater  in  consequence  of  a  General 
Average  Act,  shall  be  deemed  to  be  Losses  either  preliminary,  or  (as 
the  Case  may  be)  necessarily  incidental  to  a  General  Average  Act. 

10.  Any  Sacrifice,  the  Object  of  which  could  be  properly  and 
effectually  accomplished  by  means  of  a  -lettison,  shall  for  the 
J*urposes  of  this  Act  be  considered  us  a  Jettison. 

1  I .  A  Jettison  of  Specie,  Money,  Jewels,  or  other  like  valu- 
able roiiimodities  shall  not  be  made  unless  such  Jettison  shall  be 
unavoidable. 

Siiir,   I'uKHiirr,  and  Caiu;o. 

12.  Subject  to  the  I'rovisions  of  this  Act,  a  prudent  and  extra- 
ordiiifiry  Sacrifice  of  a  Mast,   Spar,   Sail,  Halyard,  A'ard,  Rigging, 


INTERNATIONAL   LAW    OF   GENERAL   AVI] I! AGE.  To 

or  other  Apparel,  Outfit,  or  Materials  of  the  Ship,  made  by  or  by 
the  Direction  of  the  Master  of  the  Ship,  in  order  to  prevent  her 
from  foundering,  or  to  float  her  when  stranded,  to  enable  lier  to 
reach  a  Port  of  Refuge,  to  righten  her  when  on  her  Beam  Ends, 
to  prevent  lier  from  being  driven  on  Shore,  to  join  Convoy,  or  to 
prevent  her  from  being  separated  from  the  same,  or  in  order  to 
avert  any  unusual  and  imminent  Peril  from  the  Ship,  Freight,  and 
Cargo,  shall  be  deemed  to  be  a  General  Average  Act  or  Loss 
within  the  Meaning  of  this  Act. 

13.  The  Loss  sustained  on  account  of  any  Part  of  the  Bulwarks 
of  the  Ship  having  been  cut  away  in  order  to  relieve  her  of  A\'atcr 
when  flooding  her  Decks  shall  be  deemed  to  be  a  General  Average 
Loss  within  the  Meaning  of  this  Act. 

14.  When  a  Mainmast,  after  having  been  cut  away  for  a 
General  Average  Pui*pose  or  Sacrifice,  shall  in  its  Descent  have 
carried  away  the  Mizenmast,  or  have  injured  the  Boats  or  Bulwarks 
or  any  Part  of  the  Ship  or  of  the  Cargo,  then  in  such  Case  the 
Damage  which  such  Mainmast  shall  have  so  done  as  aforesaid  to 
the  Mizenmast,  Boats,  Bulwarks,  or  other  Part  of  the  Ship,  or  to 
any  Part  of  the  Cargo,  shall  be  likewise  deemed  to  be  a  General 
Average  Loss  within  the  Meaning  of  this  Act. 

15.  No  Loss  or  Damage  sustained  by  the  Ship,  Cargo,  and 
Freight,  in  consequence  of  an  intentional  Stranding  of  the  Ship, 
shall  be  deemed  to  be  a  General  Average  Loss  within  the  Meaning 
of  this  Act ;  provided,  that  if  the  Property  at  Risk  in  the 
Adventure  could  have  been  equally  eSicaciously  protected  by  means 
of  a  Jettison  or  other  General  Average  Act,  then  in  such  Case 
such  intentional  Stranding  shall  be  deemed  to  be  a  General 
Average  Act  as  regards  the  Ship. 

16.  Subject  to  the  Provisions  hereinafter  contained,  all  Loss 
or  Damage  properly  and  necessarily  occasioned  by  or  by  the 
Direction  of  the  Master  to  the  Ship,  her  Apparel  or  Oiltfit,  prior 
to  the  Discharge  of  the  Cargo  and  for  the  Benefit  of  the  Ship 
and  Cargo,  in  heaving  the  Ship  off"  after  she  shall  have  been  either 
intentionally  or  accidentally  stranded,  shall  be  deemed  to  be  a 
General  Average  Loss  within  the  ]\Ieaning  of  this  Act. 

17.  All  Damage  properly  done  to  Property  by  the   M.ister  in 


76  MARITIME   LEGISLATION. 

cousequeuce  of  getting  the  Ship  off  the  Ground  after  the  Cargo 
shall  have  been  discharged  for  that  Purpose,  shall  be  deemed  to  be 
a  General  Average  Sacrifice,  provided  that  the  Cargo  and  Ship  are 
subsequently  reunited ;  or  that,  even  if  the  Cargo  and  Ship  are 
not  subsequently  reunited,  the  Value  of  the  Ship  shall  not  be 
improved  by  getting  her  oif. 

18.  All  Damage  done  to  the  Ship,  Freight,  and  Cargo  in  con- 
sequence of  a  Measure  properly  taken  by  the  Master  to  extinguish 
a  Fire  on  board  the  Ship  shall  be  deemed  to  be  a  General  Average 
Loss  within  the  Meaning  of  this  Act. 

19.  All  Expenses  and  Liabilities  properly  incurred  by  the 
Master  of  the  Ship  for  the  Purpose  of  extinguishing  a  Fire  on 
board,  shall  be  deemed  to  be  General  Average  Losses  within  the 
Meaning  of  this  Act. 

20.  The  Loss  or  Damage  caused  to  the  Ship,  Freight,  and  Cargo 
by  carrying,  crowding,  or  hoisting  a  Press  of  Sail  shall  not  be 
deemed  to  be  a  General  Average  Loss  within  the  Meaning  of  this  Act. 

21.  When  the  Ship  shall  have  been  lost  owing  to  the  Want 
of  an  Anchor  or  Chain  slipped  from,  such  Loss  of  the  Ship  as 
afavsaid  shall  not  be  deemed  to  be  a  General  Average  Loss 
within  the  meaning  of  this  Act. 

22.  No  Sacrifice  of  the  Wreck  of  a  Mast,  or  of  a  Spar  snapped 
or  sprung  by  the  AVind,  or  of  the  Rigging  attached  thereto,  or  of 
any  other  Portion  of  the  Ship  or  her  Apparel,  that  shall  have  been 
so  damaged  by  Accident  as  to  be  unfit  for  its  primary  Function, 
shall  be  deemed  to  be  a  General  Average  Act  within  the  Meaning 
of  this  Act. 

23.  Tlio  Sacrifice  of  any  of  the  Ship's  Guns,  Ammunition, 
Outfit,  Apparel,  or  Furniture,  or  of  any  other  Property,  made  by 
or  by  the  Direction  of  the  Master  of  the  Ship  in  lawful  Defence 
against  Capture,  and  the  Expense  of  curing  such  Persons  on  board 
as  sliall  have  Ijfen  wounded,  maimed,  or  otherwise  bodily  injured 
in  such  Defence  as  aforesaid,  shall  be  deemed  to  be  General  Average 
Sacrifices  within  the  Meaning  of  iliis  Act. 

Note. — 'i'liis  Sectio/i  is  ('(Minlci-  In  llic  |)r('sent  Law  f)ii  (his 
Matter,  but  is  recommendrd  hy  i(s  I'nlicy  in  encournging  l.-iufiil 
and  judicious  Resistance. 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.  77 

24.  No  Loss  of  Interest  or  Profit  on  the  Property  at  Risk  in 
the  Adventure,  and  no  Loss  occasioned  by  the  Delay,  Wear  and 
Tear,  Deterioration  in  Value,  Loss  of  ]\Iarket,  or  Change  in  Price 
of  the  Property  at  Risk  as  aforesaid,  consequent  upon  a  General 
Average  Sacrifice,  shall  be  deemed  to  be  a  General  Average  Loss 
within  the  Meaning  of  this  Act. 

25.  No  Sacrifice  of  Property  that  shall  have  been  itself  a  Cause 
of  Peril  to  any  Portion  of  the  Property  at  Risk  in  the  Adventure, 
or  which  shall  have  been  in  a  State  of  Wreck,  or  which  shall  have 
been  carried  on  board  the  Ship  in  a  Manner  or  at  a  Time  not 
warranted  by  the  usual  Course  of  Trade  in  such  Voyages  as  that 
in  which  the  Ship  shall  at  the  Time  of  such  Sacrifice  have  been 
employed,  or  which  in  any  Manner  shall  have  impeded  the  due 
Course  of  the  Navigation  of  the  Ship,  shall  be  deemed  to  be  a 
General  Average  Act  within  the  Meaning  of  this  Act. 

26.  No  Loss  occasioned  by  a  contrary  Wind  or  Calm,  or  by 
Frost  or  other  Temperature  of  the  Atmosphere,  shall  be  deemed  to 
be  a  General  Average  Loss  within  the  Meaning  of  this  Act,  pro- 
vided that,  if  the  Master  of  the  Ship  shall,  on  account  of  the 
Performance  of  a  General  Average  Act,  have  properly  caused  her 
to  deviate  from  the  Course  of  her  Voyage  for  a  Port  or  Place 
where  she  shall  have  been  detained  by  a  Severity  of  Climate  usual 
at  such  Place,  then,  in  such  Case,  the  Cost  of  the  Crew's  Wages 
and  Provisions  occasioned  by  such  Protraction  of  the  Voyage  shall, 
subject  to  the  Provisions  of  this  Act,  be  deemed  to  be  General 
Average  Losses  within  the  Meaning  of  this  Act. 

27.  Every  General  Average  Act  made  on  behalf  of  the  Ship 
after  Part  of  the  Cargo  shall  have  been  placed  in  Lighters  shall  be 
deemed  to  be  a  General  Average  Sacrifice,  likewise  as  regards  that 
Part  of  the  Cargo  which  shall  have  been  placed  in  the  Lighters 
(this  will  prevent  undue  Preferences  on  the  Part  of  the  Master). 

28.  When  a  General  Average  Sacrifice  shall  have  been  made  of 
any  Part  of  a  Lighter,  Long  Boat,  or  small  Craft  into  which  l^art 
of  the  Cargo  shall  have  been  placed  or  was  about  being  placed  in 
order  to  extricate  the  Ship  from  a  Peril  not  incident  to  the  usual 
Course  of  the  Voyage,  and  when  any  General  Average  Expenditure 
shall  have  been  incurred  in  respect  to  such  Lighter,  Long  I'oat,  or 


78  MARITIME   LEGISLATION. 

small  Craft  as  aforesaid,  all  such  said  Sacrifices  and  Expenditures 
as  aforesaid  shall,  subject  to  the  Provisions  of  this  Act,  be  deemed 
to  be  General  Average  Acts  or  Expenditures  respectively  as  regards 
the  Ship,  Freight,  and  Cargo. 

29.  No  Loss  or  Damage  of  Property  by  Worms,  Insects,  or 
Climate  shall  be  deemed  to  be  a  General  Average  Loss  within  the 
Meaningf  of  this  Act. 

Cargo. 

30.  Subject  to  the  Provisions  of  this  Act,  the  Jettison  or  other 
General  Average  Sacrifice  of  any  Portion  of  the  Goods  placed  in  a 
Lighter,  Boat,  or  other  small  Craft  in  their  Passage  from  the  Ship 
to  the  Shore  shall  be  deemed  to  be  a  General  Average  Sacrifice  as 
regards  the  Ship  and  the  Lighter,  Boat,  or  other  like  Craft  and  the 
Remainder  of  the  Cargo. 

3L  The  Shipper  of  Cargo  by  a  Ship  that  shall  have  saved 
another  at  Sea  shall  be  entitled  to  a  Share  of  the  Salvage  propor- 
tionate to  the  Loss  (if  any),  sustained  by  him  by  reason  of  such 
Salvage  Services. 

32.  If  Goods  jettisoned  or  otherwise  sacrificed  by  a  General 
Average  Act  shall  have  been  recovered,  they  shall  be  deemed  to 
have  continued  to  be  the  Property  of  the  Person  or  Persons  whose 
Property  they  were  at  the  Time  when  they  were  jettisoned  or 
otherwise  sacrificed  as  aforesaid,  but  such  Owner  or  Owners  shall 
refund  such  General  Average  Contribution  (if  any)  as  shall  have 
been  received  by  him  or  them  on  account  of  such  Jettison  or  other 
General  Average  Act,  after  having  first  deducted  from  the  Amount 
of  such  Contribution  a  Sum  that  will  be  equivalent  to  the  Value  of 
the  Damage  sustained  by  the  Goods  so  sacrificed  as  aforesaid 
together  with  the  Costs  of  Salvage  (if  any). 

')■).  The  Loss  or  Damage  of  C'argo,  and  the  Loss  of  Freight 
consequent  upon  a  Discliarge  of  any  Part  of  the  Cargo  when  the 
Ship  shall  have  been  stranded,  shall  be  deemed  to  ])e  a  General 
Average  f.oss  within  the  Meaning  of  this  Act. 

31.  The  Loss  of,  or  oil.  I'rojxTly  by  rciison  of  its  licing  properly 
sold  })y  the  Master  of  the  Ship  at  a  Port  of  licfiige  in  order  to  pay 
anv  Debff't.   Expenses,   or    [iiahilil  ies   |iro|)(  rly   incurred   liy  him   in 


INTERNATIONAL   LAW   OF   GENERAL    AVERAGE.  79 

respect  to  any  Matter  that  is  constituted  by  this  Act  a  General 
Average  Sacrifice,  shall  be  deemed  to  be  a  General  Average  Loss 
within  the  Meaning  of  this  Act, 

35.  No  Damage  occasioned  to  the  Cargo  on  account  of  the 
Chafing  or  Breakage  of  any  Part  thereof  in  consequence  of  a 
Jettison  or  other  General  Average  Act  shall  be  deemed  to  be  a 
General  Average  Loss  within  the  Meaning  of  this  Act. 

3G.  No  Loss  of,  or  on,  Cargo  and  Freight  by  discliargiug  the 
Cargo  at  a  Port  of  llefuge,  except  in  Cases  where  such  Discliarge 
shall  have  been  necessarily  made  in  a  Manner  not  usually  adopted 
at  such  Port  as  aforesaid  in  respect  of  Ships  not  in  Distress,  shall 
be  deemed  to  be  a  General  Average  Loss  within  the  Meaninj^  of 
this  Act. 

37.  No  Damage  done  to  the  Cargo  by  Water  getting  down  the 
Hatches  in  consequence  of  a  Jettison  or  other  General  Average 
Act  being  or  having  been  made,  shall  be  deemed  to  be  a  General 
Average  Loss  within  the  Meaning  of  this  Act. 

38.  No  Loss  of,  or  on.  Cargo  by  reason  of  its  being  properly 
shut  out  or  left  at  a  Port  of  Refuge  shall  be  deemed  to  be  a  General 
Average  Loss  within  the  Meaning  of  this  Act. 

39.  No  Loss  of,  or  on,  Cargo  caused  by  discharging  it  when  the 
Ship  shall  have  been  condemned  at  a  Port  of  Refuge,  or  in  conse- 
quence of  the  accidental  Wreck  or  Damage  of  the  Ship,  or  acci- 
dental Damage  of  the  Cargo,  shall  be  deemed  to  be  a  General 
Average  Loss  within  the  Meaning  of  this  Act. 

40.  If,  or  when,  the  Cargo  shall  have  been  necessarily  discharged 
at  a  Port  of  Refuge,  the  loss  of  any  part  of  the  cargo  at  such  Port 
as  aforesaid  by  Fire,  Theft,  or  any  unusual  and  imminent  Peril 
shall  be  deemed  to  be  a  General  Average  Loss  Avithin  the  ]\Icaning 
of  this  Act. 

41.  No  Sacrifice  of  Goods  for  which  no  Bill  of  Lading:  or  other 
Note  in  Writing  shall  have  been  signed  by  the  Master,  or  which 
shall  have  been  taken  on  board  by  him  barratiously  or  contrary  to 
a  Charter  Party,  or  which  the  Owner  of  such  Goods  or  his  Agent 
shall  without  the  Master's  Consent  have  shifted  to  a  Place  in  the 
Ship  different  from  that  allotted  to  them  by  the  ^Master,  sliall  be 
deemed  to  be  a  General  Averaare  Act  within  the  Mciuiintr  <>f  this  Act. 


80  MARITIME   LEGISLATIOX. 

Freight. 

42.  Subject  to  the  Provisions  of  this  Act,  in  all  Cases  in  which 
the  Sacrifice  of  any  Part  of  the  Cargo  is  constituted  by  this  Act  a 
General  Average  Loss,  the  Sacrifice  of  Freight  sustained  in  conse- 
quence of  such  Sacrifice  as  aforesaid  of  any  Part  of  the  Cargo  shall 
be  deemed  to  be  a  General  Average  Loss  of  the  Freight. 

43.  No  loss  of  Freight  on  Cargo  shut  out  at  a  Port  of  Refuge 
or  on  any  Portion  of  the  Cargo  not  sacrificed  by  a  General  Average 
Act,  shall  be  deemed  to  be  a  General  Average  Loss  within  the 
Meaning  of  this  Act. 

Intermediate  Expenses. 

44.  All  extraordinary  Expenses  properly  incurred  by  the  Master 
of  the  Ship  in  order  to  join  Convoy,  or  in  consequence  of  his  waiting 
for  the  same,  shall  be  deemed  to  be  General  Average  Sacrifices 
within  the  Meaning  of  this  Act. 

45.  All  Compensations  and  Ransoms  properly  paid  to  Pirates 
by  the  Master  of  the  Ship  on  behalf  of  the  Persons  or  Property  on 
board  shall  be  deemed  to  be  General  Average  Acts  within  the 
Meaning  of  this  Act. 

46.  The  cost  of  Crew's  Wages  and  Provisions  and  all  other 
Expenses  and  Liabilities  properly  incurred  by  the  Master  in  order 
to  release  the  Property  at  Risk  in  the  Adventure  from  Capture, 
Detention,  or  Embargo,  suffered  by  Order  of  a  Sovereign  Power, 
shall  be  deemed  to  be  General  Average  Losses  within  the  Meaning 
of  this  Act. 

47.  If  a  Hostage  shall,  with  his  own  consent  and  that  of  the 
Master  of  the  Ship,  have  been  properly  given  to  secure  a  Compensa- 
tion or  Ransom,  the  Reimbursement  to  which  such  Hostage  shall 
have  Ijeen  entitled  for  his  I'^xpcnsos  and  personal  Inconvenience  as 
HUf.li  Hostage  shall  be;  deemed  to  1k'  a  (Jcncral  vVverage  Loss  within 
the  Meaning  of  this  Act. 

48.  All  Sums  of  Money  or  AiMiclcs  of  Vahie  j)roporly  and 
necessai-ily  \):i\(\  or  given  by  tlie  Maslci-  on  account  of  IIk;  Services 
of  nnotlii-i-  Sliij)   in   cirrctiiig  a    Re-capture  of  Mic  Slii{)  and  C'argo 


INTERNATIONAL   LAW   OF  GENERAL   AVERAGE.  81 

from  an  Enemy,  shuU  be  deemed  to  be  General  Average  Losses 
within  the  meaning  of  this  Act. 

49.  All  Expenses  and  Liabilities  properly  incurred  by  the 
Master  of  the  Ship  for  the  Purpose  of  unloading  her  after  she  shall 
have  been  either  intentionally  or  accidentally  stranded,  shall,  except 
in  Cases  where  the  Cargo  could  have  been  discharged  and  forwarded 
to  its  Destination  for  an  Outlay  or  Loss  less  in  Amount  than  the 
Cost  incurred  in  heaving  the  Ship  off,  be  deemed  to  be  General 
Average  Losses  within  the  Meaning  of  this  Act. 

50.  All  Expenses  and  Liabilities  properly  incurred  by  the 
Master  in  consequence  of  getting  the  Ship  off  the  Ground,  after 
the  Cargo  shall  have  been  discharged  for  that  Purpose,  shall  be 
deemed  to  be  General  Average  Sacrifices,  provided  that  the  Cargo 
and  Ship  are  subsequently  re-united,  or  that  even  if  the  Cargo  and 
Ship  are  not  re-united  as  aforesaid,  the  Value  of  the  Ship  shall  not 
have  been  improved  liy  getting  her  off  the  Ground. 

51.  The  Expense  of  re-shipping  Cargo,  after  it  shall  have  been 
put  into  Lighters  to  float  or  lighten  the  Ship  when  stranded,  or 
when  threatened T with  any  unusual  or  imminent  Peril,  shall  be 
deemed  to  be  a  General  Average  Loss  within  the  Meaning  of  this 
Act. 

52.  The  Crew's  Wages  and  Provisions  and  all  other  Expenses 
consequent  upon  bearing  u]3  for  a  Port  of  Refuge  shall  (from  the 
Date  when  the  Ship  deviates  from  the  Course  of  her  Voyage  for  the 
Purpose  of  such  bearing  up)  be  deemed  to  be  General  Average 
Losses  within  the  Meaning  of  this  Act. 

53.  The   Inward    Port    Charges,    such    as    Towasre,    Pilotasfe, 

O         ?  O      '  0      5 

Dockage,  Health  Fees,  and  the  like,  incurred  at  a  Port  of  Refuge, 
whenever  the  bearing  up  for  such  Port  shall  have  been  rendered 
necessary  either  by  a  General  Average  Sacrifice,  or  by  accidental 
Damage  to  the  Ship  or  Cargo,  Sickness  of  Crew,  unexpected  Want 
of  Water  or  Provisions,  shifting  of  the  Cargo,  Pumps  choking,  or 
other  like  Accident,  shall  be  deemed  to  be  General  Average  Losses 
within  the  meaning  of  this  Act. 

hi.  All  Expenses  consequent  upon  bearing  up  for  a  Port  of 
Refuge,  the  Expense  of  discharging  the  Cargo  there,  and  the  Hire 
of  Lighters  in  order  to  avoid  discharging  Part  or  the  whole  of  the 


82  MARITIME   LEGISLATIOX. 

Cargo  there,  if  properly  incurred  by  the  INfaster,  shall  be  deemed 
to  be  General  Average  Losses  within  the  ^Meaning  of  this  Act. 

55.  All  Expense  of  Postages,  Notarial  Fees,  Adjustment  Fees, 
and  Brokerao-e.  properly  incurred  by  the  Master  of  the  Ship  at  a 
Port  of  Refuge,  shall  be  deemed  to  be  General  Average  Losses 
within  the  Meaning  of  this  Act. 

56.  The  Cost  of  the  Wages  of  Men  properly  emploj'ed  by  the 
Master  to  pump  when  the  Cargo  shall  have  been  on  board  at  a  Port 
of  Eefuge,  shall  be  deemed  to  be  a  General  Average  Loss  within  the 
Meaning  of  this  Act. 

57.  The  expense  of  Warehouse  llent  at  a  Port  of  Refuge  on 
Cargo  necessarily  discharged  there,  and  the  Expense  of  re-shipping 
it,  except  as  to  such  Portion  thereof  as  shall  have  been  discharged 
in  consequence  of  an  Accident  at  such  Port,  and  in  all  Cases  the 

•Outward  Port  Charges  properly  incurred  by  the  ^Master  at  such 
Port,  shall,  in  case  the  Ship  shall  cai-ry  on  the  Cargo  from  such 
Port,  or  when  the  original  Contract  of  Affreightment  shall  not 
have  been  determined,  be  deemed  to  be  General  Average  Losses 
within  the  Meaning  of  this  Act. 

58.  If,  or  when,  the  Stowage  of  any  Part  of  the  Cargo  shall 
have  become,  by  means  of  Perils  of  the  Sea,  a  Cause  of  Peril  to  the 
Property  at  Risk  in  the  Adventure,  all  Expense  properly  and 
necessarily  incurred  for  the  Purpose  of  discharging  the  Cargo  in 
order  to  restow  it  properly  shall  be  deemed  to  be  a  General  ^Average 
Loss  within  the  Meaning  of  this  Act. 

59.  All  Expense  properly  incun-ed  by  the  Master  of  the  Ship 
in  protecting  the  Property  at  Risk  at  a  Port  of  Refuge  shall  be 
deemed  to  be  a  General  Average  Loss  within  the  Meaning  of  this 
Act. 

GO.  All  Expense  of  Delay  at  Sea,  properly  incurred  by  the 
!^^aster  in  order  to  refit,  shall  be  deemed  to  be  a  General  Average 
Loss  within  the  Meaning  of  this  Act. 

CI .  The  Expense  of  discharging  the  Cargo  in  order  to  cool  it, 
or  for  any  other  Object,  except  it  be  to  the  Advantage  of  all  the 
property  at  Risk  in  the  Adventure,  shall  not  be  deemed  to  be  a 
General  Average  Act  or  Loss  within  the  Meaning  of  this  Act. 

02.  The  Expense  of  making  pcM-manent  {{cpairs  to  the  Ship  at 


INTERNATIONAL   LAW   OF   GENERAL   AVEIJAGE.  83 

a  Port  of  Refuge,  except  in  Cases  where  the  Damage  to  repair 
which  such  Repairs  shull  be  made  shall  have  been  a  General 
Average  Loss,  shall  not  be  deemed  to  be  a  General  Average  Loss 
within  the  Meaning  of  this  Act. 

Go.  The  Expense  properly  incurred  by  the  ^Nfastor  at  a  Port  of 
Refuge  in  making  Repairs  which  do  not  permanently  improve  the 
Value  of  the  Ship  shall  be  deemed  to  be  a  General  Average  Loss, 
provided  that  either  such  Repairs  as  aforesaid,  or  some  other  General 
Average  Loss  or  Kxpenseof  an  equal  Amount  should  be  necessarily 
incurred  at  such  I'ort  in  order  to  the  safe  Prosecution  of  the  Voyage, 
or  in  case  that  such  Repairs  as  aforesaid  shall  have  been  made  in 
order  to  avoid  discharging  the  Cargo. 

CI.  If,  or  when,  the  Ship  shall  have  entered  a  Port  of  Refuge 
for  the  l^urpose  of  having  Repairs  made  which  shall  have  been 
rendered  necessary,  partly  on  account  of  particular  and  partly  on 
account  of  General  Average  Losses  sustained  by  such  Ship,  the 
Expense  of  the  Repairs,  and  of  the  Wages  and  Provisions  for  the 
Crew  during  the  Time  in  which  the  Repairs  are  being  made,  shall 
be  apportioned,  so  that  so  much  only  of  such  Expenses  as  aforesaid 
as  shall  have  been  rendered  necessary  in  consequence  of  a  General 
Average  Sacrifice,  shall  be  deemed  to  be  a  General  Average  Act  or 
Loss. 

65.  Bottomry,  Respondentia,  and  all  other  Interest  and  Com- 
mission, but  not  the  Premiun  of  Insurance  on  Money  expended, 
properly  incurred  by  the  Master  at  a  Port  of  Refuge,  with  respect 
to  a  General  Average  Act,  shall  be  deemed  to  be  General  Average 
Acts  or  Losses  within  the  Meaning  of  this  Act. 

60.  All  Expenses  incurred  by  the  Master,  which  if  incurred  by 
another  Person  would  have  been  Expenditures  within  the  Meaning 
of  this  Act,  shall  be  deemed  to  be  Expenditures  within  the  Meaning 
of  this  Act. 

67.  If,  or  when,  the  Ship,  her  Apparel  or  Outfit,  or  any  Part 
thereof,  shall  have  been  properly  and  necessarily  hypothecated  by 
the  Master,  in  order  to  discharge  a  General  Avei*age  Liability,  the 
Sum  for  which  the  Ship,  her  Apparel  or  Outfit,  or  any  Part  thereof, 
shall  be  so  hypothecated  as  aforesaid,  shall  be  contributed  for  as  a 
General  Average  Loss,  just  as  if  the  Shipowner  had  made  a  Jettison 


84  MARITIME   LEGISLATION. 

of  his  Property  of  tlie  Value  of  such  Sum,  provldocl  that  if  the 
Cargo  shall  have  been  lost,  and  the  Ship  sliall  have  remained  safe, 
such  Sum  shall  be  contributed  for  as  an  Expenditure. 

"Wrecks. 

68.  In  Case  of  Wreck,  all  prudent  and  extraordinary  Sacrifices 
properly  made,  and  all  prudent  and  extraordinary  Expenses  and 
Liabilities  properly  incurred  by  the  Master  for  the  Benefit  of  the 
Property  at  Kisk  in  the  Adventure,  shall  be  deemed  to  be  General 
Average  Losses  within  the  Meaning  of  this  Act. 

69.  In  Case  of  Wrecks,  the  Cost  of  Crew's  Wages,  when  the 
Crew  shall  have  been  employed  for  the  Benefit  of  the  Ship,  Freight, 
and  Cargo,  after  the  Date  at  which  the  Shipowner  could  have 
legally  dismissed  them,  and  no  Freight  shall  have  been  earned  by 
him  in  the  Adventure,  shall  be  deemed  to  be  a  General  Average 
Loss  within  the  Meaning  of  this  Act. 

70.  The  Loss  or  Damage  of  any  Part  of  the  Ship's  Stores 
caused  by  their  being  landed  in  case  of  Wreck  in  a  disadvantageous 
Manner  or  at  a  disadvantageous  Time,  having  been  intended  to 
facilitate  the  Discharge  of  the  Cargo,  shall  be  deemed  to  be  a 
General  Average  Loss  within  the  Meaning  of  this  Act. 

7L  The  Expense  of  landing  the  Cargo  shall,  when  the  Ship 
shall  have  been  wrecked,  or  condemned  at  a  Port  of  Refuge,  be 
deemed  to  be  a  General  Average  Loss  within  the  Meaning  of  this 
Act. 

Estimation  of  General  xVverage  Losses. 

72.  The  Amount  of  a  General  Average  Loss  of  Ship's  Stores 
shall,  when  the  Ship  shall  have  been  wrecked  before  they  shall 
have  been  replaced,  be  estimated  at  the  Amount  or  Value  which 
Buch  Stores  would  have  had  if  lluy  hud  been  on  Ijoard  when  the 
Ship  was  wrecked. 

73.  "Jlie  Amount  of  a  General  Average  Loss  of  ;iny  of  the  Ship's 
Stores  shall,  when  such  Stores  shall  have  been  r(^])laced  before  or 
at  the  'I'rniiiiiation  of  th<!  Advent  hit,  lie  ('(iniviilcnt  lo  the  actual 
Expense  of  n^placing  such  Stores;  but,  wluni  such  Stores  shall 
have    been     re))l;ircd     sul)sefjtK'utly    fo    the    Termination    of    the 


INTERNATIONAL   LAW    OF   GENERAL   AVERAGE.  85 

Adventure,  the  Amount  of  such  General  Average  Contribution  as 
aforesaid  shall  be  equivalent  to  the  Expense  that  would  have  been 
incurred  if  they  had  been  replaced  at  the  Termination  of  the 
Adventure. 

74.  The  Amount  of  a  General  Average  Loss  of  any  Portion  of 
the  Cargo  shall  be  estimated  at  the  Price  which  it  would  have 
brought  at  the  Ship's  Port  of  Destination  at  the  Time  it  would  have 
been  delivered  there  if  it  had  not  been  sacrificed  as  aforesaid, 
deducting  from  such  Amount  as  aforesaid  all  such  Charges  and 
Expenses  as  must  have  been  paid  if  the  Goods  had  been  delivered 
at  the  said  Port  and  shall  have  been  avoided  by  the  Goods  having 
been  sacrificed  as  aforesaid. 

75.  A  General  Average  Sacrifice  of  Property  at  Risk  in  the 
Adventure  shall  not,  if  followed  by  a  total  Loss  of  the  Ship  and 
Cargo,  be  contributed  for  in  any  Manner. 

7G.  For  the  Purposes  of  this  Act,  the  Loss  sustained  by  a 
General  Average  Sacrifice  of  Property  at  Hisk  in  the  Adventure 
shall,  if  followed  by  a  Wreck  of  the  Ship,  be  estimated  at  the 
Value  which  the  Property  so  sacrificed  would  have  had  if  it  had 
also  suffered  the  same  Wreck. 

77.  The  Loss  sustained  by  a  General  Average  Sacrifice  of 
damaged  or  perishable  Property  shall  be  estimated  at  the  Value 
which  the  Property  so  sacrificed  would,  if  it  had  not  been  so  sacri- 
ficed, have  had  at  the  Ship's  Port  of  Destination,  deducting  from 
such  Value  all  Charges  and  Expenses  that  should  have  been  paid 
before  such  Goods  as  aforesaid  could  have  been  delivered  there  and 
shall  have  been  avoided  by  their  having  been  sacrificed  as  afore- 
said. 

78.  The  Value  of  Property  to  be  contributed  for  in  respect  of 
a  General  Average  Sacrifice  made  of  the  same,  if  such  Value  shall 
have  been  stated  in  the  Bill  of  Lading  lower  than  it  really  was, 
shall  be  its  actual  A'alue. 

79.  The  Loss  sustained  in  consequence  of  a  General  Average 
Sacrifice  of  Provisions  intended  to  be  consumed  during  the  Voyage, 
or  of  the  Effects  of  Sailors  or  Passengers,  shall  be  estimated  at  the 
Amount  for  which  the  replacing  of  such  Provisions  or  Effects  shall, 
or  would,  have  cost. 


86  MARITIME   LEGISLATION. 

80.  The  A'alue  of  Goods  to  be  contributed  for  after  they  sliall 
have  been  sold  to  pay  Expenses  shall,  when  such  Sale  shall  have 
been  a  General  Average  Loss  within  the  Meaning  of  this  Act,  and 
shall  have  realised  a  less  Sum  than  the  Sale  of  the  same  Goods 
would  have  produced  at  the  Ship's  Port  of  Destination,  be  the 
probable  Amount  of  the  net  Proceeds  of  such  Goods  at  the  Port  of 
Destination ;  but,  in  case  such  Sale  as  aforesaid  shall  have  produced 
a  greater  Sum  than  would  have  been  obtained  by  a  Sale  of  the 
same  Goods  at  the  Port  of  Destination,  then  in  such  Case  the  Value 
of  such  Goods  so  to  be  contributed  for  as  aforesaid  shall  be  equiva- 
lent to  the  net  Proceeds  of  the  Sale  as  aforesaid  after  deducting 
therefrom  the  Freight  which  the  Shipowner  Avould  have  earned  if 
the  Goods  so  sold  as  aforesaid  had  arrived  at  the  Port  of  the  Ship's 
Destination,  provided  that  if  such  Deduction  of  Freight  would 
lower  the  Proceeds  of  the  Goods  sold  at  such  intermediate  Port  as 
aforesaid  below  the  probable  net  Proceeds  which  would  be  obtained 
by  a  Sale  of  such  Goods  at  the  Port  of  Destination,  then,  in  such 
Case,  the  probable  net  Proceeds  of  such  Goods  if  sold  at  the  Port 
of  Destination,  estimated  according  to  the  Provisions  of  this  Act, 
shall  be  deemed  to  be  the  Value  at  which  such  Goods  are  to  be 
contributed  for. 

81.  In  all  cases  where  a  IjOSs  or  contributory  Interest  is  directed 
by  this  Act  to  be  estimated  at  the  Ship's  Port  of  Destination,  if  it 
shall  happen  that  the  property  so  to  be  estimated  shall  not  have  a 
Price  Current  at  such  I'ort,  and  shall  not  be  usually  bought  and 
sold  there,  then  in  such  Case  the  Estimation  of  such  Loss  or  con- 
tributory Interest  (as  the  Case  may  be)  shall  be  made  according 
to  llie  N'aliie  wliich  the  I'rojjerty  the  Subject  of  such  Loss  or  Con- 
tribution shall  have  at  the  nearest  Port  to  the  Ship's  Port  of 
Destination  which,  at  the  tiin(>  of  such  Estimation  as  aforesaid, 
shall  have  I'riees  Current  of  such  I'lMpi-rty,  or  where  such  Property 
shall  then  be  usually  l)nu;_'-ht  ;iii(l  sold. 

82.  lOvery  IN-rson  who  sleill  re(ei\e  any  Ceiieriil  Average  Con- 
tribution for  any  Portion  of  tins  Cargo  shall  p.iy  I'reight  for  the 
same,  if  such  I'ortion  of  the  Cargo  as  al'oresaid  would  have  been 
li;ible  to  I'Veight.  in  CMse  the  Geueriil  Ax'ei'age  Sacritiee  on  ;iccount 
of  wliieh  he  sluill  have    i'erfi\r(|    ' 'oiil  nl)ul  ion    ;is   afore>aid  had  not 


Aril 


INTKUNATIONAL   LAW   OF   GENERAL   AVElfAGE.  87 

been  performed,  but  a  like  General  Average  Sacrifice  had  been 
performed  In'  means  of  other  Property,  and  the  Amount  for  which 
he  shall  be  liable  in  respect  of  such  Portion  of  the  Cargo  for  Freight 
shall  be  the  Amount  for  which  such  Portion  of  the  Cargo  would 
have  been  liable  in  the  Circumstances  aforesaid,  less  an  Amount 
equal  to  the  Sum  assessed  on  the  Freight  in  the  Adjustment  of 
such  General  Average  Contribution  as  aforesaid. 

83.  Subject  to  the  Provisions  of  this  Act,  the  Loss  of  Freight 
sustained  in  consequence  of  a  General  Average  Sacrifice  shall  be 
estimated  according  to  the  Amount  of  Freight  payable  at  the  Ship's 
Port  of  Destination  under  the  Bill  of  Lading. 

84.  If,  or  when,  the  Adjustment  of  a  General  Average  Contri- 
bution shall  be  made  at  a  Port  where  the  Property  in  respect  of 
which  such  Contribution  shall  have  been  made  shall  have  been 
replaced  by  an  Equivalent,  the  Property  so  sacrificed  as  aforesaid 
shall  be  contributed  for  at  its  Cost  Price,  together  with  the 
Shipping  Charges,  but  without  the  Premium  (if  any)  paid  for  its 
Insui-ance. 

85.  When  Goods  shall  have  been  shipped  at  a  Port  of  Kefuge 
in  the  Place  of  Goods  sacrificed  by  a  General  Average  Act,  an 
Amount  equal  to  the  net  Freight  payable  in  respect  of  the  former 
Goods  shall  be  deducted  from  the  Freight  Payable  in  respect  of 
the  latter  Goods ;  but  if  the  Goods  shipped  at  a  Port  of  Refuge 
shall  not  have  been  shipped  in  the  Place  of  Goods  sacrificed  by  a 
General  Average  Act,  then,  in  such  Case,  only  Half  of  the  net 
Freight  paj^able  on  the  Goods  shipped  at  such  Port  of  Refuge  as 
aforesaid  shall  be  deducted  from  the  Freight  payable  in  respect  of 
the  Goods  so  sacrificed  as  aforesaid. 

CONTKIBUTORY   INTERESTS   AND   YaLUES. 

8G.  In  the  Case  of  a  General  Average  Sacrifice  made  on  behalf 
of  a  chartered  Ship  in  Ballast,  the  Property  liable  to  contribute  in 
respect  of  such  General  Average  Sacrifice  shall  be  the  Ship,  and 
the  Freight  which  she  is  earning  under  tlie  Charter. 

87.  As  regards  a  General  Average  Sacrifice  made  on  belialf  of 
a  loaded  Shi}),  the  Property  liable  to  contribute  in  respect  of  such 


88  MARITIME   LFXUSLATION. 

General  Average  Sacrifice  shall  be  the  Ship,  the  Freight,  and  the 
Cargo. 

88.  All  Property  at  Eisk  in  the  Adventure  shall  be  liable  to 
contribute  in  respect  of  a  General  Average  Sacrifice  made  in  its 
Behalf  irrespectively  of  the  Question  whether  such  Property  as 
aforesaid  could  have  been  the  Subject  of  a  General  Average  Sacrifice 
or  not. 

89.  If,  or  when,  after  Part  of  the  Cargo  shall  have  been  dis- 
charged at  a  Port  of  Refuge,  a  General  Average  Sacrifice  shall  be 
performed  in  behalf  of  the  Ship  and  the  Remainder  of  the  Cargo, 
the  whole  Cargo  and  the  whole  Freight  shall  contribute  in  respect 
of  such  General  Average  Sacrifice  just  as  if  no  Part  of  the  Cargo 
had  been  discharged  previously  to  the  Performance  of  such  General 
Average  Sacrifice  as  aforesaid. 

90.  In  case  a  Ship  laden  with  a  Cargo  which  is  liable  to  be 
confiscated  for  a  Breach  of  International  Law  by  the  Shipper  shall 
suffer  a  IjOss  which,  if  the  Cargo  had  consisted  of  Articles  that 
might  have  been  lawfully  shipped,  Avould  have  been  a  General 
Average  Loss,  then,  in  such  Case,  such  Loss  shall  be  deemed  to  be 
a  General  Average  Loss,  but  the  Ship  shall  not,  under  such  cir- 
cumstances as  aforesaid,  be  liable  to  contribute  for  any  Loss  sus- 
tained by  the  Cargo  in  order  to  evade  Danger  of  such  Confiscation 
as  aforesaid. 

91.  If  the  Ship  aloue  shall  be  liable  to  Confiscation,  then,  in 
such  Case,  no  Portion  of  the  Cargo  shall  be  deemed  liable  to  con- 
tribute in  respect  of  any  Loss  sustained  by  the  Ship  in  order  to 
avoid  the  Daugt-r  of  such  Confiscation. 

Ii2.  Arms.  Ainiimuition,  and  other  JMunitions  of  War,  such 
I'rovisions  as  arc  intciMlt'd  to  be  consunifd  during  the  Voyage,  the 
Seamen's  Wages  and  Luggage,  J'assi'ng(>rs'  Luggage,  Wearing 
Api)arel,  and  such  Money,  Jewels,  or  other  Articles  as  are  being 
carried  on  the  Bodies  of  ]Vrsons  on  bdaid.  Passage  ]\louey  when 
iKit  ;it  Kislc.  and  Abincy  oi-  I'roperty  lent  or  gi\-en  on  I5<»t  tonii-y  or 
J{espondentia,  shall  not  be  liable  to  Cent  rilmt  ion  in  icsjiect  of  any 
Gen(Mal  Average  Sacrifice. 

W.  Jn  respect  to  G(  nnal  Aviragc  Saeiiliees  and  d'eneral 
Avciiige   J.osses,  •Jewels,  J 'carls.    I  )iani(>iicls.   and   other  ()rnanients 


INTEKNATIONAL  LAW   OF  GLNERAL   AVEI^AGE.  89 

or  Articles  of  (I rent  Value  not  carrie;!  on  tlie  Person,  and  Gold 
and  Silver,  whether  coined  or  uncoined,  and  not  carried  on  the 
Person,  shall  be  assessed  for  Contribution  only  at  One  Fourth  the 
Amount  at  wliich  they  shall  have  been  entered  in  the  Bill  of 
Lading :  I'rovided  that,  if  their  Value  shall  not  have  been  entered 
in  the  Bill  of  Lading,  they  shall  be  assessed  for  the  J^n-pose 
aforesaid  at  One  Fourth  of  their  Value  at  the  Ship's  Port  of 
Destination. 

9k  Every  Person  entitled  to  a  General  Average  Contribution 
shall  contribute  towards  such  General  Average  Contribution,  and 
towards  all  other  General  Average  Contributions  levied  in  respect 
to  the  same  Adventure. 

95.  Subject  to  the  Provisions  of  this  Act,  the  contributory 
Value  of  Property  in  respect  to  a  General  Average  Contribution 
shall  be  its  Value  at  the  Ship's  Port  of  Destination. 

90.  For  all  Purposes  of  a  General  Average  Contribution,  the 
Value  of  all  Duties,  Landing  Charges,  Insurance  Premiums,  Com- 
mission Charges,  Discounts,  and  Guarantees  on  Sales  on  Credit, 
and  all  other  Charges,  Claims,  or  Liens  whatsoever  to  which  the 
Ship  and  Cargo,  or  any  Part  of  either,  shall  have  been  subject  sub- 
sequently to  the  Performance  of  the  General  i\.verage  Sacrifice  in 
respect  to  which  the  General  Average  Contribution  shall  be  levied, 
shall  be  deducted  from  the  Value  of  the  said  Property,  when 
assessed  as  directed  by  this  Act. 

97.  An  Expenditure  or  Disbursement  shall  be  contributed  for 
by  the  Owners  of  the  Property  at  Risk  in  the  Adventure  according 
to  the  Proportion  of  the  Values  of  their  respective  Interests  in  such 
Property  as  aforesaid,  estimated  at  the  Time  when  such  General 
Average  Expenditure  or  Disbursement  as  aforesaid  shall  have  been 
made. 

98.  If  Property  shall  be  liable  to  Contribution  both  in  respect 
to  a  General  Average  Sacrifice  and  a  General  Average  Expenditure 
or  Disbursement,  it  shall  be  assessed  on  the  different  Principles 
ordained  by  this  Act  in  respect  to  such  Contributions  respectively. 

99.  If  any  l*roperty  shall  be  properly  and  necessarily  sold  by 
the  Master  at  another  Place  than  that  of  the  Ship's  De:>tiiiation, 
the  Value  of  such  Pro^  ert y  in  respect  to  its  Liability  to  a  General 


00  MARITIME   LEGISLATION. 

Average  Contribution  shall  be  its  Value  at  such  Place  of  Sale  as 
aforesaid. 

100.  Goods  shipped  into  Barges  for  the  Purpose  of  Safety,  or 
of  lightening  and  saving  the  Vessel  and  the  Remainder  of  the 
Cargo  (provided  that  such  Shipment  do  not  take  place  in  the 
ordinary  Course  of  Trade)  shall,  in  respect  to  all  other  General 
Average  Sacrifices  not  Expenditures  made  or  incurred  during  the 
Adventure,  be  deemed  to  have  continued  on  board  throughout  the 
entire  Course  of  the  Voyage. 

101.  The  General  Average  Losses  to  which  the  Twenty-ninth 
Section  of  this  Act  relates  shall  be  primarily  contributed  for  by  the 
Lighter,  Longboat,  or  Craft  referred  to  in  the  said  vSection,  and  the 
Cargo  on  board,  and  the  Contribution  of  the  Cargo  of  such  Lighter, 
Longboat  or  Craft  shall  be  apportioned  among  the  principal  Vessel 
and  the  Remainder  of  its  Cargo. 

102.  If,  or  when,  Part  of  the  Property  liable  to  a  General 
Average  Contribution  shall  have  been  sold  on  Credit,  the  Value  of 
such  Property  in  respect  to  its  Liability  to  a  General  Average  Con- 
tribution as  aforesaid  shall  be  its  Price  Current  as  defined  by  this 
Act,  or  its  actual  Credit  Price,  deducting  therefrom  the  usual 
Discount  and  Guarantee. 

103.  If,  after  a  Jettison  or  other  General  Average  Sacrifice, 
tlie  Ship  shall,  before  completing  her  Voyage,  return  to  the  Port  of 
Departure,  or  to  any  Port  neighbouring  thereto,  where  Articles  of 
the  Nature  and  Quality  of  the  Goods  jettisoned  or  otherwise  sacri- 
ficed as  aforesaid  shall  have  been  usually  exposed  for  Sale,  then  in 
such  Case,  if  the  Owner  of  the  Goods  so  jettisoned  or  sacrificed  as 
aforesaid,  or  if  any  Agent  of  his  at  such  Port  as  aforesaid,  shall 
liave  liad  sufficient  Time  to  purchase  an  equal  Quantity  of  Goods 
of  tlie  same  Description  and  Quality  as  the  Goods  so  jettisoned  or 
sacrificed  as  aforesaid,  the  General  Average  Contribution  for  such 
Jettison  or  otlnr  Sacrifice  as  aforesaid  sliall  be  made  for  a  Sum 
equal  to  the  Market  Price  of  tin'  Aiiieles  so  jettisoned  or  sacrificed 
as  aforesaid  current  at  the  Port  of  1)(  parture  or  other  neighbouring 
J'ort  as  aforesaid. 

lot.  if  any  Portion  of  lln'  I'l-opi  rty  wliieli  had  been  at  Risk 
in  the  Adventure,  on  account  of  which  a  (ieneral  Average  Sacri- 


INTERNATIONAL   LAW    OF   GENERAL    AVERAGE.  91 

fice  shall  have  been  incurred,  shall,  after  a  Wreck  of  the  Ship, 
have  been  saved,  such  Property  shall,  in  respect  of  such  General 
Average  Sacrifice,  be  liable  to  contribute  for  One  Fourth  Part  of 
its  actual  A'alue  after  deducting  therefrom  the  Costs  of  Salvage  (if 
any). 

105.  Subject  to  the  Provisions  of  this  Act,  the  Value  of  the 
Freight  in  respect  of  its  Liability  to  Contribution  for  a  Ceneral 
Average  Sacrifice  shall  be  the  Value  of  the  Freight  actually 
earned. 

lOG.  Subject  to  the  Provisions  of  this  Act,  the  A'alue  of  the 
Freight  in  respect  to  its  Liability  to  a  General  Average  Contribu- 
tion shall  be,  in  the  Case  of  a  loaded  Ship,  the  Value  of  the  Freight 
as  specified  by  the  Bill  of  Lading,  but,  in  the  Case  of  a  Ship  in 
Ballast,  the  contributory  Value  of  the  Freight  shall  be  its  Value 
under  the  Charter  (if  any)  under  which  she  shall  have  earned 
Freight  in  the  Adventure  in  respect  to  which  the  General  Average 
Act  in  question  shall  have  been  made. 

107.  In  estimating  the  contributory  A^alue  of  Fi-eight  with 
respect  to  General  Average  Contributions,  the  Value  of  the  Wages, 
Port  Charges,  and  other  Expenses  paid  or  incurred  previously, 
but  not  any  Wages,  Port  Charges,  or  Expenses  incurred  subse- 
quently, to  the  Performance  of  the  General  Average  Sacrifice  in 
respect  of  which  such  General  Average  Contribution  as  aforesaid 
shall  be  levied,  shall  be  deducted  from  the  Value  of  the  gross 
Freight. 

108.  Nothing  in  this  Act  contained  shall  affect  the  Rights  of 
Parties  having  Interests  in  the  Freight  as  between  themselves. 

109.  If,  or  when.  Goods  shall  have  been  transhipped  by  anotlier 
vShip,  the  Value  of  the  Freight  as  regards  its  Liability  to  Contribu- 
tion in  respect  of  a  General  Average  Sacrifice  performed  in  behalf 
of  the  Ship  shall  be  the  Value  of  the  Freight  as  herein-before 
determined,  deducting  from  such  estimated  A'alue  the  Amount  of 
the  transhipping  Freight  and  increased  Expenses  attendant  upon 
the  Transhipment. 

110.  Subject  to  the  Provisions  of  this  Act,  when  the  Ship  shall 
have  been  chartered  for  an  Outward  and  a  Homeward  Voyage  by  a 
single  Charter,  the  Freight  in  respect  to  its  Liability  to  Contribu- 


92  MARITIME   LEGISLATION. 

tion  for  a  General  Average  Act  performed  on  the  Outward  Voyage, 
shall  be  apportioned,  so  that  no  Part  of  the  Freight  earned  on  the 
Homeward  Voyage  shall  be  liable  to  contribute  in  respect  of  such 
General  Average  Act  as  aforesaid. 

111.  When  the  Ship  shall  have  been  chartered  for  an  Outward 
Voyage  by  one  Charter  and  for  a  Homeward  Voyage  by  another, 
the  Homeward  Freight  under  the  Charter  shall,  in  case  such 
Charter  shall  have  been  effected  before  the  Charter  for  the  Outward 
A'^oyage,  be  liable  to  contribute  in  respect  of  a  General  Average 
Sacrifice  incurred  on  the  Outward  Voyage. 

112.  The  Freight  paid  by  a  Charterer  of  the  Ship  before  the 
Contract  shall  have  been  performed  shall  be  liable  to  Contribution 
in  respect  of  a  General  Average  Sacrifice  made  in  its  Behalf,  and 
the  Shipowner  shall  be  fro  ianto  discharged  from  Liability  to  such 
Contribution  as  aforesaid. 

113.  When  the  Freight  on  Part  of  the  Cargo  is  paid,  'lost  or 
not  lost,'  on  the  Shipment  of  the  Cargo,  the  Shipper  of  such  Part 
of  the  Cargo  as  aforesaid,  and  not  the  Charterer,  shall,  in  respect 
to  such  Portion  of  the  Freight  as  aforesaid,  be  liable  to  Contribu- 
tion in  respect  of  a  General  Average  Sacrifice  performed  in  behalf 
of  such  Freight. 

Hi.  In  respect  to  General  Average  Contributions,  if  the 
Freight  for  the  Ship  shall  have  been  paid  in  advance,  no  Reduction 
shall  Ije  made  of  any  l^art  of  the  Wages  due  or  to  accrue  due  in 
the  Course  of  tlie  Adventure,  except  for  such  Portion  of  the  said 
Wages  as  may  be  dependent  for  Payment  upon  the  successful  Issue 
of  the  Adventure  and  shall  have  accrued  due  before  the  General 
Average  Sacvilici'  in  (|iie.sti()ii  sliall  liave  been  performed. 

1  l-'t.  "When  the  Ainoiiiil  of  an  Fxpenditure  or  Expenditures  as 
defined  by  tliis  Act  shall  he  less  llian  tlie  Value  of  the  Property 
saved  at  the  'rerniinaf  ion  of  tlie  Adxcnture,  the  contributory  Values 
of  the  Ship,  I'l-riw-ht .  anil  ('arjj'o  shall  be  deemed  lo  be  tlieir  Values 
to  the  Owners  of"  iImiii  nspert  i\i'ly  at  the  'iV'rmination  of  the 
Adventure. 

I  hi.  \\'lien  the  Ainiiiinl  o("  an  l'].\  pciidlt  ure  or  Fx]ienditures  as 
di'lini'd  Ijy  this  .\et  shall  liaNc  been  greater  than  the  N'alue  of  tlie 
I'j-operty  saved  at  flic  Tei-mination  of  the  Adventure,  the  Proceeds 


INTERNATIONAL  LAW   OF  GENERAL   AVERAGE.  93 

of  the  Property  so  saved  shall  be  applied  towards  the  Liquidation 
of  such  Expenditure  or  Expenditures  as  aforesaid,  and  the  Excess 
of  the  Amount  of  such  Expenditure  or  Expenditures  over  the 
Proceeds  of  such  Property  as  aforesaid  shall  be  so  apportioned 
amongst  the  Parties  to  the  Adventure  as  that  they  shall  be  liable 
for  such  Expenditure  or  Expenditures  in  the  Proportions  in  which 
they  would  have  been  liable  if  the  whole  Property  which  had  been 
originally  at  Risk  in  the  Adventure  had  safely  reached  the  Ship's 
Port  of  Destination. 

117.  All  Sacrifices,  Expenses,  or  Losses  which,  as  between  the 
ShipowTier,  Charterer,  Shipper,  Passengers,  and  all  Persons  on 
board,  are  General  Average  Losses  witliin  the  Meaning  of  this 
Act,  shall  also  be  deemed  to  be  General  Average  Losses  as  between 
Underwriters  and  Assured. 

118.  Parties  to  a  Contract  may  enter  into  any  special  Agree- 
ment in  derogation  of  all  or  any  of  the  Provisions  of  this  Act, 
anything  herein-before  contained  to  the  contrary  notwithstand- 
ing. 

Procedure. 

119.  After  a  General  Average  Sacrifice  shall  have  been  made, 
the  Master  shall  enter  the  Particulars  thereof  in  his  Logf  Book, 
and  shall  also  draw  up  a  Document  stating  the  Circumstances 
which,  in  his  Opinion,  rendered  such  General  Average  Sacrifice 
necessary,  and  also  containing  a  Description  of  the  Property  so 
sacrificed  as  aforesaid ;  and  such  Documents  shall  be  signed  by  the 
Master,  Seamen,  and  by  such  Owners  of  the  Property  at  Risk  in 
the  Adventure  as  shall  have  been  on  board  when  the  General 
Average  Sacrifice  was  made ;  and  the  Master  of  every  Ship, 
whether  registered  or  unregistered,  shall  deliver  a  Copy  of  such 
Documents  as  aforesaid  to  the  Shipping  Master  at  the  Port  into 
which  the  Ship  shall  be  first  brought  after  the  General  Average 
Sacrifice  shall  have  been  made. 

120.  The  Adjustment  of  General  Average  Contribution  shall 
be  made  either  at  the  Ship's  Port  of  Destination,  or  at  the  Port 
into  which  she  shall  first  properly  and   necessarily  put  after  the 


94  MARITIME  LEGISLATION. 

Performance  of  the  General  Average  Sacrifice  in  respect  of  wliicli 
such  Contribution  as  aforesaid  shall  be  levied. 

121.  No  Foreign  Adjustment  of  a  General  Average  Loss 
shall  be  valid  as  between  British  Subjects  unless  such  shall  have 
been  made  in  conformity  with  the  Law  of  the  Port  of  Destination 
of  the  Ship. 

122.  The  Master  of  the  Ship  shall  have  a  Lien  upon  and  may- 
retain  all  Property  liable  to  a  General  Average  Contribution  until 
the  same  shall  have  been  discharged  by  the  Persons  liable  in 
resjDect  thereof. 

123.  The  Owner  of  Property  or  of  ]\roney  which  shall  have 
been  the  Subject  of  a  General  Average  Sacrifice  may,  after  a 
Demand  and  Refusal  of  the  General  Average  Contribution  due  to 
him  in  respect  of  such  General  Average  Sacrifice  as  aforesaid,  at 
his  Election  sue  the  Consignee  or  Shipper  of  the  Property  liable  to 
such  Contribution  and  the  Master  of  the  Ship  either  jointly  or 
severally. 

124.  The  Owner  of  Property  sold  by  the  Master  of  the  Ship 
to  discharge  Liabilities  properl}-  incurred  by  him  in  respect  of  a 
General  Average  Act  or  Loss  shall  in  all  Cases,  irrespectively  of 
the  Question  whether  the  Master  shall  have  given  Security  for 
such  Liability  or  not,  have  a  Right  of  Action  against  all  Persons 
in  respect  of  whose  Property  such  General  Average  Act  or  Loss  as 
aforesaid  shall  have  been  performed  or  sustained. 

125.  In  case  the  Consignee  of  Property  shall,  after  Demand, 
refuse  to  pay  his  share  of  a  General  Average  Contribution  due  by 
him  in  respect  of  such  Property,  the  Master  of  the  Ship  shall  have 
a  Right  of  Action  against  him  and  the  Shipper  of  such  Property, 
either  jointly  or  severally,  as  he  may  think  proper,  but  shall  have 
no  Chiim  against  any  other  Person,  in  respect  of  such  Contribu- 
tion, in  tlie  event  of  tlie  Refusal  or  Inability  of  the  Consignee  or 
Shipper  to  pay  Kiicli  Coul  ril)iil  ion. 

120.  In  all  Cases  of  Jiankruplcy  a  Claim  for  a  General  Average 
Contribution  shall,  except  as  regards  Debts  of  Record  due  to  the 
Crown,  take  IViority  of  all  other  Debts  or  Liabilities  of  the  Parties 
liable  to  such  (jlencral  Averagf-  Coiit  ribuf  ion. 


INTERNATIONAL  LAW   OF   GENERAL   AVERAGE.  9.", 

After  tlie  labours  of  the  Glassjow  Conference  had 
apparently  so  satisfactorily  terminated,  this  was  considered 
to  be  the  most  suitable  form  in  Avliich  to  obtain  the 
consent  of  the  legislatures  to  uniform  enactments  on  the 
matter  in  question.  For  the  reasons  above  set  out,  how- 
ever, the  Council  of  the  Social  Science  Association  had 
been  unable  to  comply  with  that  part  of  the  Glasgow 
resolutions  which  desired  that  a  period  of  six  months 
previous  to  another  conference  should  be  given  to  the 
Chambers  of  Commerce  and  Underwriting  Bodies  there 
represented  for  the  consideration  of  the  Bill  to  be  delibe- 
rated upon,  and  it  was  not  until  the  month  of  April  1862 
that  the  Bill  was  circulated  among  those  concerned,  to- 
gether with  a  summons  to  meet  for  its  discussion  on  June 
6tli  following  in  the  Guildhall  of  the  City  of  London. 

Xow  in  order  to  shorten  the  public  discussion  on  this 
Bill,  such  of  the  delegates  and  others  interested  as 
happened  to  be  in  town  were  invited  to  meet  a  few  days 
previously,  when  the  Antwerp  delegates  presented  the 
following : — 


Remarks  on  the  General  Average  CoNsoLmATioN  Bill  drawn 
UP  BY  the  Care  of  the  National  Association  for  the  Pro- 
motion OF  Social  Science. 

London  :  Aiiril  18G2. 

The  Chamber  of  Commerce  of  Antwerp  having  commnnicated 
to  the  underwriters  of  this  City  the  Bill  on  International  General 
Average  received  from  the  Association  for  the  Promotion  of  Social 
Science,  some  underwriters  and  persons  competent  in  the  matter 
assembled  in  order  to  examine  the  Bill. 

These  persons  have  fully  appreciated  all  the  merit  and  talent 
displayed  in  the  framing  of  this  important  work,  and  on  account  of 
that  merit  itself  it  has  been  unanimously  regi'etted  tliat  the  short 


96  MARITIME   LEGISLATION. 

time  allowed  for  consideration  does  not  permit  to  frame  the  remarks 
with  all  the  development  required  for  a  matter  so  important  as 
that  which  concerns  General  Average,  and  which  is  in  so  close  a 
connection    with    the    contracts  of  affreightment,  insurance,    and 

bottomry. 

The  ntilitv  of  uniformity  in  the  matter  being  now  universally 
recognised,  this  point  needs  not  to  be  referred  to  ;  the  remarks 
framed  in  these  lines  on  account  of  the  shortness  of  time  allowed 
are  only  summary  and  chiefly  based  on  expediency  and  practice, 
as  they  cannot  be  accompanied  by  commentaries  or  considerations 
on  the  origin  of  laws,  doctrine  or  jurisprudence,  neither  on  de- 
finitions, effects,  consequences  or  incidents  relating  to  a  General 
Average  Act. 

1.  Interpretation  clause,  perfect. 

2.  If  the  meaning  of  this  article  be  well  understood  here,  the 
crew  may  perform  a  General  Average  act  without  the  consent  or 
concurrence  of  the  master.  This  principle  appears  to  be  dangerous, 
as  it  may  bring  in  collision  the  master  with  the  crew,  who  may 
contest  his  authority,  so  needful  in  a  maritime  expedition. 

The  Belgian  and  French  laws  appear  to  be  more  convenient,  as 
the  view  of  the  master  is  always  preponderating,  though  submitted 
to  deliberation  as  much  as  circumstances  permit  to  do  so. 

3  and  I.  In  conformity  with  the  general  principles. 

5.  Admits  that  a  person  who  has  made  a  General  Average  ex- 
penditure has  a  right  to  raise  contribution,  though  the  property  at 
risk  in  the  adventure  be  totally  lost.  In  such  a  manner  an  agent 
at  an  intermediate  port  may  apply  to  owners  of  property  totally 
lost,  to  be  repaid  for  the  advances  he  had  made  in  order  to  gain  a 
commission  or  to  procure  a  benefit  to  himself.  Such  agents  ought 
to  know  that  in  case  of  failure  of  the  adventure  they  have  no  right 
to  claim.  Besides,  these  advances  may,  in  most  circumstances, 
be  covered  by  an  insurance  or  bottomry. 

The  Belgian  and  French  laws  limit-  tlu^  contribution  to  the 
value  of  the  property  saved,  and  a  sliipowner  is  entitled  to  abandon 
nh\\)  and  freight  for  expenses,  debts,  or  liabilities  incurred  by  the 
master,  neither  is  the  owner  of  a  cargo  lost  bound  to  pay  expendi- 
tures in  case  of  total  loss  of  his  property ;  provided,  nevertheless, 


TNTEHNATIOXAL   LAW   OF   GENERAL   AVERAGE.  97 

that  he  has  not  directly  interfered  himself  or  contracted  liabilities 
which,  in  that  case,  are  obligations  personal  to  the  owner  of  ship 
or  goods  who  have  contracted  them.  An  amendment  in  this  sense 
is  proposed. 

6.  Admitted. 

7.  It  is  proposed  to  add :  '  The  cases  foreseen  by  Art.  25  always 
excepted.' 

8.  Admitted. 

.9.  Is  just,  except  the  last  section,  relating  to  water  spoiling 
goods  in  performing  a  General  Average  act,  which  ought  to  be 
suppressed  in  order  to  be  in  accordance  with  rule  37  ;  or  rule  87 
to  be  amended  and  brought  in  concordance  with  rule  9. 
10  and  13.  Admitted. 

14.  It  is  asked  if  it  would  not  be  better  to  say  :  '  When  a  mast 
cut  away  .  .  .  shall  have  carried  away  another  mast  and  a  .  .  .' 
instead  of  saying  '  when  the  mainmast  carries  away  the  mizen- 
mast  ? ' 

15.  This  article  does  not  appear  to  be  so  clear  as  the  resolution 
voted  at  Glasgow,  which  required  '  Special  fticts  clearly  proved.' 
Further,  the  new  article  says  :  '  Shall  be  deemed  General  Average 
act  as  regards  the  ship.'  Why  should,  then,  the  damage  to  cargo 
not  be  deemed  General  Average  act  ? 

16.  Is  in  accordance  with  Art.  83,  admitting  equally  the 
damage  to  the  cargo. 

17.  The  value  of  a  stranded  ship  must  necessarily  improve  by 
getting  her  off.  How  is  this  to  be  understood?  The  first  para- 
graph of  this  article  is  very  just  and  clear. 

18  and  19.  Agreed.  It  is  understood  the  damage  directly 
caused  by  the  fire  is  necessarily  Particular  Average. 

20.  Agreed.  Carrying  a  press  of  sail  is  a  manceuvre  the  master 
is  obliged  to  perform  when  circumstances  require  it. 

22.  Admitted.  These  objects  having  become  by  themselves  a 
cause  of  peril,  as  is  said  in  Art.  25. 

23.  x\dmitted.  It  would  even  be  equitable  to  grant  a  re- 
muneration to  every  person  having  become  lame  or  incapable  of 
working  in  consequence  of  having  concurred  in  such  a  defence 
for  the  common  interest. 

11 


08  MARITIME   LEGISLATION. 

24.  It  would  perhaps  be  good  to  add  the  words  '  leakage  of 
liquids.' 

25.  This  article  is  very  good,  but  would  it  not  be  convenient 
to  specify  some  articles  excluded  from  General  Average,  as,  for 
example,  jettison  of  goods  loaded  on  deck  in  any  voyage  whatever, 
and  even  from  houses  on  deck,  which  impede  the  manceuvring, 
displace  the  centre  of  gravity,  and  cause  the  vessel  to  be  thrown 
on  her  beam-ends  when  heavy  seas  are  shipped  ?  Jettison  of  water- 
casks,  spars,  and  all  other  ship  stores  stowed  on  deck,  cutting  away 
the  stern-boat,  &c.,  ought  neither  to  be  considered  as  General 
Average  losses. 

26.  The  first  paragraph  of  this  article  is  just,  but  the  second  is 
very  dangerous,  as  shipmasters  may  be  induced  to  choose  an  inter- 
mediate port  at  their  convenience  to  remain  there  during  winter 
at  the  expense  of  the  cargo.  In  order  to  prevent  fraud  and  dis- 
putes, would  it  not  be  expedient  to  amend  the  rule  in  a  manner 
that  in  such  a  case  the  cost  of  crew,  wages,  and  provisions  shall 
only  be  deemed  General  Average  losses  until  the  time  when  the 
vessel,  being  put  again  in  a  state  of  seaworthiness,  should  have  been 
ready  to  leave  such  a  port  if  she  had  not  been  impeded  by  the 
severity  of  climate  ? 

27  and  28.  Agreed. 

29.  AVould  it  not  be  convenient  to  add  '  leakage  on  liquids  '? 

30.  Agreed. 

31.  This  is  very  just,  but  does  the  word  'loss'  comprehend 
only  material  loss,  or  does  it  even  comprehend  the  incidental  losses 
mentioned  in  rule  21  ? 

In  order  to  prevent  abuses  and  disputes,  it  would  perhaps  be 
expedient  to  admit  only  material  losses. 

32.  As  the  application  of  this  rule  will  lead  sometimes  to 
diniciiltics,  would  it  not  be  good  to  state,  that  in  case  of  disagree- 
ment on  the  real  value  of  the  goods  so  recovered  (undoubtedly  in 
a  damaged  state),  they  shall  be  sold  at  public  auction  and  the  net 
proceeds  divided  between  all  the  property  in  proportion  of  the 
aiiioiiiit  tliey  have  colli  nl)iifi'(l  for? 

33.  This  is  logical,  iiccordiiig  to  the  disjrosilions  of  rul(>  1(5; 
nevcrtlu'les.s,  would   i!    iif)(    Ijc  more  expedient  not  to  admit  such 


INTERNATIONAL    LAW    OF   GENERAL    AVE IJ AGE.  GO 

losses,  or  at  least  only  admit  them  in  case  the  stranding  lias  been 
deemed  intentional,  according  to  rule  15  ?  At  all  events,  the 
degree  of  damage  resulting  from  such  a  discharge  is  very  difficult 
to  state. 

34.  It  would  perhaps  be  useful  to  explain  that  this  loss  is  to  be 
settled  just  in  the  same  manner  as  a  bottomry  premium;  that  is 
to  say,  that  loss  apportioned  jiro  rata  on  the  amount  of  General 
Average  on  the  amount  of  special  charges  on  cargo  (if  any),  and 
on  the  amount  of  Particular  Averages  and  charges  on  ship  and 
owners  (if  any). 

35  and  3G.  Agreed.  According  to  the  resolutions  voted  at 
Glasgow  on  points  of  expediency. 

37.  Is  in  contradiction  with  Art.  9.  admitting  as  a  General 
Average  act  the  damage  caused  to  the  ship  by  cutting  a  hole  in 
the  deck,  whilst  rule  37  does  not  admit  as  a  General  Average  act 
the  water  running  down  through  that  same  hole  and  so  damaging 
cargo. 

Further :  the  last  paragraph  of  rule  9  admits  the  damage  by 
shipping  water  in  consequence  of  a  General  Average  act,  and  rule 
87  does  not  admit  it.  As  a  matter  of  expediency,  it  would  perhaps 
be  desirable  to  suppress  the  last  paragraph  of  rule  9  and  to  adopt 
rule  37  as  it  is  framed  in  the  Bill,  though  contrary  to  principle. 

38.  This  appears  really  unjust,  and  seems  to  be  contrary  both 
to  principles  and  to  expediency.  Abstraction  made  of  the  principle, 
let  us  examine  only  the  expediency. 

1st.  That  part  of  a  cargo  which  cannot  be  put  again  on  board 
the  ship  after  repairs,  and  is  necessarily  left  at  a  port  of  refuge, 
constitutes  very  often  a  total  loss,  as  it  is  frequently  too  small  a 
portion  to  be  sent  again  to  the  port  of  destination  by  another 
vessel,  which  is  not  always  at  hand. 

Why  must  the  property  of  A  remain  there,  and  not  that 
of  B  ? 

Who  is  the  supreme  judge  to  decide  whether  A  or  B  sliall  be 
put  again  on  board  or  not  ? 

Rule  27  does  not  admit  certain  losses  in  order  to  prevent  un- 
due preferences  on  the  part  of  the  nuister.  This  reason  alone  would 
plead   in  favour  of  brinufing  a  change   in  rule   :>8  :   the  more  so  as 

II  1' 


100  MARITIME   LEGISLATION. 

rule  40  admits  as  General  Average  losses  those  occasioned  by  fire, 
theft,  &c.  We  believe  thus  it  is  needless  to  bring  forward  other 
considerations,  and  think  it  utterly  convenient  to  propose  the 
framing  of  this  rule  as  folloAvs  :  '  The  loss  of,  or  on  cargo,  by  reason 
of  its  beino-  properly  shut  out  or  left  at  a  port  of  refuge  shall  be 
deemed  to  be  a  General  Average  loss  within  the  meaning  of  this 
Act.' 

39.  No  objection. 

40.  Such  losses  ajjpear  to  be  very  remote  consequences  of  a 
General  Average  act,  nevertheless  they  could  be  admitted  as 
'  consequences '  provided  the  loss  on  goods  left  at  a  port  of  refuge 
be  likewise  considered  as  '  consequences,'  and  accordingly  to  be 
deemed  within  the  meaning  of  the  bill  as  General  Average  losses. 

41.  On  the  ground  of  the  same  principle,  and  in  order  to 
prevent  abuses  and  exaggerated  claims,  it  would  be  desirable  that 
the  jettison  or  sacrifice  of  ship's  provisions  or  stores  be  ruled  in  the 
same  manner — i.e.  (1st)  that  the  master  should  be  held  to  have  on 
board  duly  verified  accounts  of  such  provisions  or  a  list  of  such  pro- 
visions certified  by  the  competent  authorities  of  the  port  of  de- 
parture ;  (2nd)  that  the  master  should  be  held  to  have  on  board  an 
authentic  and  certified  list  of  all  the  objects  of  inventory  or  ship's 
stores,  comprising  also  the  spare  stores ;  and  (3rd)  that  the  master 
shall  be  held  to  replace  all  such  objects  as  are  proved  to  have  been 
lost  as  aforesaid,  and  not  be  paid  by  General  Average  contribution 
on  the  mere  estimate  of  surveyors  not  accompanied  by  the  proof  of 
the  objects  having  been  replaced. 

43.  This  rule  ought  to  bo  brought  in  accordance  with  rule  38, 
if  amended. 

AG.  Could  the  time  during  which  the  wages  and  provisions  are 
allowed  not  be  more  or  less  limited  ? 

47.  In  what  manner  and  by  what  aulliority  will  be  valued  the 
reimbursement  to  which  the  hostage  shall  bo  entitled  ? 

49.  As  it  would  almost  be  impossible  to  appreciate  beforehand 
if  the  costs  of  discharging  and  forwarding  cargo  to  its  destination 
should  b(!  less  in  aiiioiiiit  lli.'iii  tli<isc  to  be  incurred  for  heaving  llie 
sliij)  off.  it  wiiiild  ])i'i-li;i|)-;  be  rxprdlrnl  to  su|)|)i-ess  the  last  para- 
y  ra|)li  of  t  liis  i-iil(!. 


INTERNATIONAL   LAW    OF   GENERAL    AVERAGE.  101 

50.  Same  observation  as  on  rule  17,  as  it  is  not  well  under- 
stood how  the  value  of  the  ship  should  not  be  improved  by  getting 
her  off. 

52.  In  order  to  bring  in  concordance  this  rule  and  rule  2G, 
and  to  avoid  abuses  and  difficulties  in  the  application  of  this  rule, 
would  it  not  be  expedient  to  admit  only  in  General  Average  the 
crew's  wages  and  pi'oxisions  from  the  date  of  the  arrival  of  the 
ship  in  the  port  of  refuge  until  the  day  when  the  vessel,  being 
again  in  state  of  seaworthiness,  will  be  ready  to  put  to  sea,  the 
allowance  for  provisions  to  be  calculated  at  a  fixed  rate  ?  See  rule 
20  on  account  of  contrary  wind,  calm,  frost,  &c.  ;  see  also  rule  71-. 

53.  It  appears  that  the  costs  resulting  from  a  vessel  putting 
in  a  port  of  refuge  on  account  of  sickness  of  the  crew  or  want  of 
provisions  ought  not  to  be  deemed  General  Average  losses  ;  neither 
those  resulting  from  shifting  of  the  cargo,  or  pumps  being  choking, 
unless  it  be  proved  that  these  accidents  do  only  arise  from  the  perils 
of  the  sea  and  not  from  the  fault  of  the  master  from  not  having 
scrupulously  stowed  the  cargo,  or  the  pumps  being  put  in  good 
order  at  the  port  of  departure. 

57.  Is  it  understood  that  the  expenses  incurred  in  consequence 
'  of  an  accident  at  the  port  of  refuge '  refer  to  an  accident  on  the 
ship? 

58.  We  propose  to  add :  '  Inasmuch  as  the  master  proves  that 
the  cargo  has  been  properly  stowed  according  to  the  regulations  of 
the  port  of  departure.' 

60.  It  would  perhaps  be  advisable,  on  account  of  expediency,  to 
suppress  this  rule,  as  it  might  give  rise  to  very  exaggerated  claims 
for  wages  and  provisions. 

What  is  the  real  meaning  of  the  words  '  delay  at  sea  in  order 
to  refit '  ? 

(51.  Heated  goods  being  themseh^es  a  cause  of  peril,  it  is  just 
that  the  expenses  mentioned  in  this  rule  be  not  admitted  as  General 
Average  expenses  ;  but  the  words,  '  except  it  be  to  the  advantage 
of  all  the  property  at  risk  in  the  adventure,'  can  they  not  pro- 
duce abuses,  as  the  owner  of  such  goods  shall  be  led  to  pretend 
that  the  discharging  of  such  goods  is  for  the  advantage  of  all  the 
]u-op(M-tv  which  may  become  damaged  or  deteriorated  if  the  dis- 


102  MARITIME   LEGISLATION. 

charge  does  uot  take  place  ?     Would  it  not  he  better  to  sujopress 
these  words  ? 

62.  As  concerns  repairs  to  the  ship,  would  it  not  be  advisable 
to  introduce  a  rule  stipulating  that,  in  order  to  compensate  the 
supposed  difference  between  the  old  objects  sacrificed  replaced  by 
new  ones,  and  according  to  the  use  now  generally  adopted, — '  Shall 
be  deducted  from  all  repairs,  replacements,  workmanship,  in  con- 
sequence of  General  Average  sacrifices,  one-third  from  the  justi- 
fied cost  of  these  works  at  the  port  where  they  have  been  made ; 
nevertheless  no  deduction  is  to  be  made  from  the  price  of  anchors 
and  15  per  cent.,  or  one-sixth  only,  from  iron  chain  cable.' 

64.  The  dispositions  of  this  rule  are  very  just  and  clear  as 
concerns  repairs,  but  on  the  point  of  crew's  wages  and  pro- 
visions they  are  not  in  accordance  with  Arts.  52  and  53,  which 
admit  as  General  Average  expenses  those  resulting  from  the  vessel 
having  put  in  a  port  of  refuge  either  by  a  General  Average  sacri- 
fice or  by  accidental  damage  to  ship  and  cargo ;  as  in  practice  the 
division  of  wages,  and  applying  them  partially  on  repairs  for 
General  Average,  and  partly  on  repairs  for  Particular  Average  could 
only  be  done  in  a  very  arbitrary  manner,  and  lead  to  many  abuses, 
for  why,  then,  should  not  also  the  warehousing  of  cargo  be  divided 
in  two  parts — one  during  repairs  for  General,  and  one  during  re- 
pairs for  Particular  Average  ?  Vie  prefer  to  admit  in  General 
Average  the  wages  during  the  whole  time  of  detention,  as  is  said 
in  our  observation  on  rules  52  and  5o. 

65.  Why  should  not  a  person  who  has  made  an  expenditure  in 
a  port  of  refuge  be  entitled  to  reindjursement  of  the  premium  of 
an  insurance  he  had  taken  in  order  to  cover  himself  for  the  loss  of 
the  sum  expended,  the  more  so,  that  by  this  insurance  premium 
have  been  avoided  the  more  considerable  expense  of  a  bottomry 
]iifiiiiiiiii,  wliicli   would  have  bci-n  cdii.sidcrrd  a  General  Average 

loss  y 

72.  Rule  75  states  that  in  cii.'-c  <»!'  t()t:il  loss  of  ship  and  cargo 
tlj<  re  sli.ill  be  no  contribution  ;  how,  then,  is  rule  72  to  be  under- 
stood as  coMccnis  loss  of  ships  sloics  when  the  ship  shall  have 
been  wi-(cl<((|  licCorc  llicy  shall  Iki\c  Imcm  replaced  ? 

7'I.   Js   it   to   he    understood   that   the   \alue  of  sacrificed   ship's 


LNTKUNATIONAL    LAW    OF   GENEKAL   AVERAGE.  K)'. 

stores  shall  be  reimbursed  at  the  value  of  the  poi't  of  destination, 
and  that  if  they  are  not  replaced  the  reimbursement  will  be 
eifected  on  an  estimation  of  surveyors  who  should  value  these  pro- 
visions at  their  cost  price  at  the  moment  of  arrival  of  the  vessel  at 
its  destiiuition  ?  On  account  of  rule  41  we  have  already  advised 
that  it  would  be  exi)edient,  in  oi-der  to  prevent  frauds  and  abuses, 
to  oblige  the  master  to  replace  all  stores  and  objects  proved  to  have 
been  sacrificed,  and  not  to  admit  estimations  not  accompanied  by 
proof  of  the  objects  having  been  replaced. 

Kule  71>  states  that  the  provisions  shall  be  estimated  at  the 
amount  for  which  the  replacing  of  such  provisions  or  effects  shall 
or  would  have  cost. 

71.  In  accordance  with  rule  05;  but  according  to  rule  120 
it  is  allowed  to  draw  statements  of  General  Average  in  ports  of 
refuge. 

How  is  it  possible  to  be  acquainted  in  such  a  port  with  the 
value  the  property  would  have  at  the  port  of  destination  ?  See 
Arts.  00  and  120. 

75.  Would  it  not  be  ad\isable  to  change  rule  5  and  make  no 
distinction  between  a  sacrifice  and  an  expenditure  in  case  of  total 
loss  of  ship  and  cargo,  as  said  in  the  observations  on  Art.  5  ? 

70.  The  value  of  such  property  appears  to  be  nought. 

70.  See  observ-ations  on  Art.  73. 

82.  The  first  paragraph  of  this  article  is  very  clear  and  just, 
but  the  last  is  totally  unintelligible. 

80.  As  concerns  ships  in  ballast,  it  appears  to  us  that  the 
freight  expected  to  be  earned  in  virtue  of  a  subsequent  charter  is 
too  indirectly  at  risk  in  the  adventure  to  be  liable  for  contribution 
of  a  sacrifice  made  on  board  a  vessel  navigating  in  ballast  though 
under  charter. 

This  system  presenting  too  many  inconveniences,  it  has 
nearly  universally  been  abandoned  to  draw  statements  on  vessels  in 
ballast. 

And  as  it  is  now  also  nearly  universally  adopted  to  settle  the 
(Jeneral  Averages  on  each  voyage  separately,  it  a]ipears  desirable 
to  amend  in  that  sense  this  rule  as  well  as  rules  110  and  111. 

02.   MoufV  lent  on  bottonu'v  ought  to  be  Vui\Ac  to  contriluitiou, 


104  MARITIME   LEGISLATION. 

for  if  a  sacrifice  saves  tlie  property  at  risk  in  the  adventure  tliis 
sacrifice  saves  also  the  loan  which  is  lost  for  the  lender  in  case  of 
total  loss  of  the  property  on  which  it  has  been  lent. 

93.  The  motives  of  this  distinction  are  not  understood.  Why 
do  articles  of  great  value  only  contribute  for  one-fourth  of  the 
amount  entered  in  the  bill  of  lading,  whilst  the  same  articles  of 
sacrifice  are  reimbursed  for  their  whole  value  ? 

The  admission  of  such  a  system  does  appear  unjust,  and  it  is 
deemed  advisable  that  these  articles  should  be  liable  to  contribu- 
tion on  their  real  value  at  the  port  of  destination,  valued  by  com- 
petent surveyors.  According  to  an  English  custom,  landing  specie 
in  case  of  stranding,  salvage  or  shipwreck  is  not  to  be  considered 
as  General  Average  ;  that  specie  pays  its  own  expense,  and  does 
not  contribute  according  to  its  real  value  in  the  general  expenses 
of  landing. 

It  would  also  be  desirable  that  this  should  be  abrogated  by  a 
rule  as  well,  that  of  articles  of  great  value  and  money  only  con- 
tributing for  one-fourth  of  their  value. 

The  preceding  observations  are  not  based  on  expediency,  but 
on  principle.  From  the  most  remote  times  to  our  days  we  do  not 
find  any  laws  establishing  a  difference  between  money  or  valuable 
articles  in  case  of  salvage  or  contribution. 

Even  the  Roman  law,  which  is  generally  admitted  as  the  foun- 
dation of  all  our  legislative  system,  does  not  make  any  difference 
in  it,  and  this  is  very  just.  The  following  dilemma  may  be  applied 
in  the  case  : — 

The  sacrifice  has,  or  has  not,  saved  the  property. 

If  the  property  be  saved,  it  has  1o  contribute  according  to  its 
value  saved. 

If  the  property  be  not  saved,  it  has  not  to  contribute. 

Thus,  in  case  of  confribnl  ion,  no  (list  inct  ions  on  account  of 
\';diiable  articles  ought  to  \h'.  iidniittcd. 

'Jo.  If  it  is  just  and  ra(i(iii;il  Mint  tlic  conl  iil)iif  ive  values  are 
those  at  the  port  of  dcst  iiml  inn,  would  it  not  he  desirable  for 
(•liici(l;itii)ii  t(i  st  i))iil;itc  tli;it  if  is  undcisl  odd  tlicsc  values  arc  those 
of  the  property  in  the  state  in  which  it  arrives  at  said  ])ort  or 
destination  ? — as,  for  fxatiiph-. 


,>«li 


INTERNATIONA!.   LAW   OF   GENEliAJ.   AVEIIAGE.  lOo 

The  cargo  being  damaged  shall  liavc  to  contribute  according  to 
the  value  in  its  damaged  state,  subject  to  the  deductions  stipulated 
in  Art.  96. 

The  ship  equally  in  her  damaged  state,  to  which  should  be 
added  the  amount  admitted  in  General  Average  for  voluntary 
sacrifices. 

If  the  vessel  be  repaired  at  an  intermediate  port  of  refuge,  and 
arrive  fully  seaworthy  at  her  port  of  destination,  surveyors  at  that 
port  should  establish  the  value  the  vessel  would  have  had  if  she 
had  arrived  at  her  destination  in  the  same  state  of  damage  in 
which  she  was  on  the  arrival  at  the  port  of  refuge. 

Vessels  are  frequently  valued  at  the  port  of  refuge,  but  this 
value  being  quite  nominal  in  a  port  where  they  put  in  accidentally, 
this  value  may  not  be  considered  as  the  real  value  liable  to  con- 
tribution. 

For  the  same  motives  it  ought  not  to  be  permitted  to  draw  up 
statements  of  General  Average  in  ports  of  refuge  unless  the  ship 
be  legally  sold  there  on  account  of  unseaworthiness  and  the  cargo 
sent  home  by  another  vessel,  as  we  have  observed  at  Art.  74.  See 
also  Arts.  120  and  121. 

96.  As  the  contributive  value  of  cargo  ought  to  be  that  really 
saved  by  a  sacrifice,  no  other  costs  should  be  deducted  from  the 
market  price  at  the  port  of  destination  than  those  which,  in  con- 
formity with  Art.  74,  are  to  be  deducted  from  the  amount  to  be 
paid  to  the  owner  of  jettisoned  goods.  These  costs  are  :  custom-house 
duties,  landing,  cartage,  storage,  and  ordinary  brokerage  for  sale. 

97  and  99.  As  already  said  in  Art.  5,  it  would  be  desirable  not 
to  admit  a  distinction  between  '  sacrifice  '  and  '  expenditure.' 

Furtlier :  how  is  it  possible  to  appraise  exactly  the  value  of 
property  at  the  time  when  the  expenditure  or  disbursement  has 
been  made  ? 

100.  It  is  thereby  understood  that  the  loss  of  goods  landed  in 
barges  in  order  to  cross  a  bar  in  leaving  the  port  of  departure — as, 
for  example,  the  bar  of  Sulina — be  always  excepted. 

In  that  case  we  approve. 

101.  Would  it  not  be  convenient  after  the  words,  '  The  principal 
vessel  and  the  remainder  of  the  cargo,'  to  add.  '  and  the  fn-ight  "■; 


100  MAPJT1>[E   LEGISLATION. 

104.  Why  not  the  real  values?  This  article  ought  to  be  put 
in  accordance  with  Art.  32. 

105  and  107.  Does  the  contributory  value  of  freight  include 
primage  ?     We  think  affirmatively. 

As  it  is  very  difficult,  if  not  impossible,  in  most  circumstances 
to  establish  the  precise  moment  of  the  sacrifice,  it  appears  to  be 
convenient  to  deduct  from  the  freight  all  charges  which  would  not 
have  to  be  paid  if  the  freight  had  not  been  earned. 

For  example,  ought  to  be  deducted  the  total  amount  wages 
due  to  the  crew,  less  those  advanced  to  the  said  crew  before  the 
beginning  of  the  voyage,  because  these  wages  being  earned  at  all 
events  do  no  longer  depend  upon  the  successful  issue  of  the  adven- 
ture. 

The  port  charges  at  the  port  of  destination  ought  also  to  be 
deducted  from  the  gross  freight. 

108.  Appears  superfluous,  as  not  being  directly  in  connection 
with  General  Average. 

110  and  111.  As  we  have  remarked  in  Art.  86,  it  would  be  con- 
venient that  this  Bill  should  stipulate  that  the  General  Averages 
be  settled  on  each  voyage  separately,  because  the  freight  of  goods 
not  yet  on  board  is  only  indirectly  at  risk  in  the  adventure. 

111.  The  wages  dependent  on  the  successful  issue  of  the  adven- 
ture are  those  not  paid  in  advance,  as  observed  on  account  of  Arts. 
105  and  107. 

115  and  1 IG.  As  said  on  account  of  Arts.  5  and  75,  we  consider 
it  desirable  that  the  present  Act  should  stipulate  that  the  liability 
of  property  is  limited  to  its  value  saved  as  well  as  concerns  sacri- 
fices as  expenditures  or  disbursements. 

117.  Underwriters  ought  also  to  be  responsible  only  to  the 
insured  amount. 

]  IS.    It  would  [x'rhaps  be  ])r(Tci-;il)]t'  iiot   to  admit  derogations. 
12')  and  121.    As  we  havf  alrcidy  <il)srr\ cd  on  account  of  Arts. 
7't  and  95,  we  believe  the  sd  ili'intiit    nf  n   (Iciici-al  Average  in  a- 
port  of  refuge  ought  onK   to  lie  ullowccl  in  the  case  we  havi'  (juoted 
in  our  rini;irks  <m  saiij  .nliclrs. 

I2;>iinil  125.  \Xr  l)clic\i'  it  onu'lif  not  to  lie  permit  ted  to  t  he 
in;i>ter  to  .>-iie  at   leisui'e  (lie  slii|)|iei-  or  the  consignee,  tlie  |)i'o|)erfy 


INTERNATIONAL    LAW    OF   GENEllAL    AVERAGE.  107 

alone  ought  to  tlie  extent  of  the  value  saved,  and  not  the  shipper, 
who  very  often  lias  sold  the  goods  and  has  no  longer  interest  in 
the  property  at  risk  in  the  adventure. 

(Signed)  T.  C.  Engels, 

President  of  the  CoiumUtce  of  Underwriters  of  the 
First,  Second,  and  Third  Reunions. 

(Signed)  Ed.  van  Pebokgii, 

Average  Stater. 
Antwerp:  May  31,  1802. 

In  course  of  tlie  prcliiniiiaiy  discussions  which  l(Jok 
phxce  on  the  diflerent  clauses  of  this  draft  \^\\\  the  fol- 
lowing alterations  were  adopted,  viz. : — 

1.  In  the  Interpretation  clause — 

a.  '  Ship  '  shall  include  ;  to  strike  out  the  word  •  privateer.' 
h.  To  leave    open  for  later    discussion    '  General    Average 
sacrifice.' 

c.  To    leave    open   for  later    discussion    '  General  Average 

expenditure.' 

d.  To  add  under   '  Unusual  Peril '  after  cliffs,  the   word  : 

'  collisions.' 

2.  To    be    struck    out    altogether,  as  too  dangerous  to  invite 

subordination. 

5.  To  be  left  open  for  future  discussion. 

G.  To  strike  out  the  words  '  either  preliminary  or  necessarily.' 

9.  To  strike  out  the  words  '  either  preliminary  or  (as  the  case 
may  be)  necessarily.' 

1 0  and  1 1 .  To  be  struck  out  altogether. 

1 4.  To  be  amended  as  follows  :  '  When  a  mast,  after  having  bc^en 
cut  away  for  a  General  Average  purpose  or  sacrifice,  shall  in  its  de- 
scent have  carried  away  another  mast,  or  have  injured  the  boats 
or  bulwarks  or  any  other  part  of  the  ship  or  of  the  cargo,  then  in 
such  case  the  damage  which  such  mast  shall  have  so  done  as  afore- 
fsaid  to  any  part  of  the  property  at  risk  shall  be  likewise  deemed 
to  be  a  General  Average  loss  within  the  meaning  of  this  Act.' 

]j  and  17.  To  be  left  open  for  future  discussion. 

II*.  'Yo  be  transposed  before  clausf  11. 


108  MARITIME   LEGISLATION. 

20.  To  strike  out  the  words  '  crowding  or  hoisting.' 

21.  To  be  struck  out  altogether. 

28  and  29.  To  be  left  open  for  future  discussion. 

31.  To  be  struck  out  altogether. 

32.  To  be  altered  in  conformity  with  the  Antwerp  proposal. 

33.  35,  and  36.  To  be  left  open  for  future  discussion. 

37.  To  be  amended  as  follows  :  '  All  damage  done  to  the  cargo 
by  water  getting  down  the  hatches  at  the  time  of  a  jettison  or  other 
General  Average  act  being  or  having  been  made,  shall  be  deemed 
to  be  a  General  Loss  within  the  meaning  of  this  Act.' 

38.  To  strike  out  the  iirst  word '  No,'  and  put  instead  the  word 
'  All.' 

39.  40,  and  43.  To  be  struck  out  altogether. 

49.  To  strike  out  the  words  :  '  Except  in  cases  where  the  cargo 
could  have  been  discharged  and  forwarded  to  its  destination  for  an 
outla}'  or  loss  less  in  amount  than  the  cost  incurred  in  heaving  the 
ship  off.' 

50.  To  be  left  open  for  future  discussion. 

52.  To  add  the  words,  '  To  the  time  of  being  ready  for  sea ' 
before  '  be  deemed,'  &c. 

54.  To  be  amended  as  follows  :  '  All  expenses  directly  resulting 
from  bearing  up  for  a  port  of  refuge,  the  expense  of  discharging  the 
cargo  there,  and  the  hire  of  lighters  in  order  to  avoid  discharging 
part  or  the  whole  of  the  cargo  there,  if  properly  and  necessarily 
incurred  by  the  master,  shall  be  deemed  to  be  General  Average 
losses  within  the  meaning  of  this  Act.' 

55.  To  be  left  open  for  future  discussion. 

57.  To  be  amended  as  follows  :  '  The  expense  of  warehouse 
rent  at  a  port  of  refuge  on  cargo  necessarily  discharged  there,  and 
the  expense  of  re-shipping  it,  and  the  outward  port  charges  properly 
inciiriiMl  bv  the,  master  at  such  port,  simll,  wlien  the  original  con- 
tract of  affreiglitment  shall  not  luivc  been  terminated,  be  deemed 
to  be  General  Average  losses  within  the  meaning  of  this  Act.' 

GO.  To  bo  struck  out  altogether. 

02  and  0  1.  To  be  allefed  in  eonlorinily  with  the  Antwerp 
proposals. 

(')'}.  'I'o  lie  amended  as   follows  :   '  Hottomry.  respondentia,  the 


INTERNATIONAL   LAW   OF   GENERAL    AVERAGE.  109 

premium  of  insurance  on  money  expended,  and  all  other  interest 
and  commission  properly  incurred  by  the  master  at  a  port  of 
refuge,  with  respect  to  a  General  Average  act,  shall  be  deemed  to 
be  General  Average  acts  or  losses  within  the  meaning  of  this  Act.' 

68.  To  add  the  word  '  all '  before  '  the  property '  &c. 

69.  To  strike  out  the  words  '  and  no  freight  shall  have  been 
earned  by  him  in  the  adventure.' 

70  and  71.  To  be  struck  out  altogether. 

73.  The  last  part  of  the  clause  from  the  word  '  but '  to  be 
struck  out. 

78.  To  be  struck  out  altogether. 

79.  To  strike  out  the  words  '  or  would.' 

80.  To  be  left  open  for  future  discussion. 
82  and  Sk  To  be  struck  out  altogether. 

85.  To  be  left  open  for  future  discussion. 

86.  To  be  left  open  for  future  discussion. 
88  and  90.  To  be  struck  out  altogether. 

91.  To  be  amended  as  follows:  'If  the  ship  alone  shall  be 
liable  to  confiscation  for  a  breach  of  international  law,  then  in  such 
case  no  lo?s  sustained  by  the  shipowner  in  order  to  avoid  such 
confiscation  shall  be  deemed  a  General  Average  loss  within  the 
meaning  of  this  Act.' 

92.  The  first  words,  '  arms,  ammunition,  and  other  munitions 
of  war,'  to  be  struck  out. 

93.  To  be  struck  out  altogfether. 

9-1.  To  be  left  open  for  future  discussion. 

95.  To  be  amended  as  follows  :  '  Subject  to  the  provisions  of 
this  Act,  the  contributory  value  of  property  in  respect  to  a  General 
Average  contribution  shall  be  its  value  to  its  owner  on  the  termi- 
nation of  the  adventure  as  reg-ards  it.' 

96.  To  be  amended  as  follows :  '  For  all  purposes  of  a  General 
Average  contribution,  the  freight,  duties,  landing  charges,  broker- 
age, discounts  incurred  subsequently  to  the  performance  of  the 
General  xVverage  sacrifice,  in  respect  to  which  the  G'cneral  Average 
contribution  shall  be  levied,  shall  be  deducted  from  the  value  of 
the  cargo  when  assessed  as  directed  by  this  Act.' 

97  !ind  98.  To  be  left  open  for  futuro  discussion. 


110  MAEITIME   LEGISLATION. 

99  and  100.  To  be  struck  out  altogether. 

101.  To  be  left  open  for  future  discussion. 

102,  103,  104,  and  105.     To  be  struck  out  altogether. 

106.  To  be  left  open  for  future  discussion. 

107.  To  be  amended  as  follows  :  '  In  estimating  the  contribu- 
tory value  of  freight  with  respect  to  General  Average  contrilmtions, 
the  value  of  those  wages,  port  charges,  and  other  expenses,  the 
liability  to  which  is  contingent  upon  the  earning  of  the  freight, 
shall  be  deducted  from  the  value  of  the  gross  freight  only  with 
two-fifths.' 

108  and  109.  To  be  struck  out  altogether. 

110  and  111.  To  be  left  open  for  future  discussion. 

112  and  113.  To  be  struck  out  altogether. 

111.  To  be  amended  as  follows:  'In  respect  to  General 
Average  contributions,  no  deduction  shall  be  made  under  section 
107  for  any  freight  paid  in  advance.' 

115.  To  be  struck  out  altogether. 

lie.  To  be  left  open  for  future  discussion. 

117  and  119.  To  be  struck  out  altogether. 

120  and  121.  To  be  left  open  for  future  discussion. 

122.  To  be  amended  so  as  to  give  to  the  consignee  a  similar 
lien  on  tlie  ship. 

123,  124,  125,  and  126.  To  be  left  open  for  future  discussion. 
And  that  therefore  only  the  following  clauses  passed  without  any 
alteration  or  amendment,  viz.  .  3,  4,  6,  7,  8,  12,  13,  16,  18,  22, 
23,  24,  25,  26,  27,  30,  34,  41,  42,  44,  45,  46,  47,  48,  51,  53,  56, 
58,  59,  61,  63,  Gii,  67,  72,  7  I,  76,  77,  79,  81,  83,  87,  89  and  118. 

Thi-  inllow  iiiii"  is  llic  rcporl  of  tlu-  preliminary  com- 
mittcc  (•niiiiiiuiiicarniL'"  llic  result  of  llieii-  delibenitions  to 
Sir  Traver.s  Twiss,  the  Presich-nl  ol'  wlial  is  known  as  the 
second  International  (ieneral  A\'erage  Congress,  viz.  : — 


INTERNATIONAL   LAW   OF  GENERAL   AVERAGE.  Ill 


NATIONAL  ASSOCIATION  FOB    THE  PROMOTION  OF 
SOCIAL   SCIENCE. 

Committee  on  General  Average. 

To  the  President  of  the  VI.  Department  Trade  and  International 
Lair,  Travers  Twiss,  Esq.,  Q.C.,  D.C.L. 

3  Waterloo  Place,  PaU  Mall :  June  9,  1862. 

Sir, — Having  been  elected  to  preside  over  this  Committee,  which 
was  summoned  by  the  Secretary  to  the  Executive  Committee  of 
this  Association  for  the  preliminary  discussion  of  the  General 
Average  Consolidation  Bill,  it  is  my  duty  to  submit  to  you  for  the 
information  of  the  sixth  annual  meeting  of  this  Association  the 
following  report  on  the  proceedings  of  this  Committee. 

I  beg  to  hand  you  herewith  a  return  of  the  gentlemen  present 
at  the  proceedings  of  this  Committee  which  has  been  assembled  on 
the  4th,  5th,  and  7tli  of  this  month,  not  only  for  the  purpose  of 
expressing  their  opinions  on  the  Bill  laid  before  them,  but,  if 
possible,  to  come  to  an  understanding  about  the  same. 

Although  the  Committee  has  been  in  deliberation  for  nearly 
twenty  hours  during  these  three  days  it  has  been  impossible  to 
attain  the  latter  so-much-desired  result,  and  you  will  find  on  the 
copy  of  the.  draft  of  the  Bill  which  I  hereby  enclose,  that  from 
the  126  sections  which  it  contains  the  Committee  has  decided  as 
follows : — 

(1)  That  these  29  sections  which  are  designated  with  a  query 
could  not  be  agreed  upon,  and  were  particularly  left  open  for  public 
discussion. 

(2)  That  22  sections  were  proposed  to  be  altered  as  amended. 

(3)  That  30  sections  were  proposed  to  be  struck  out  altogether. 

(4)  That  the  draftsman  of  the  Bill  was  desired  to  alter  five 
sections  as  instructed. 

(5)  And  that  only  40  sections  passed  as  they  were  originally 
proposed. 

The  written  remarks  of  the  Antwerp  delegates  were  handed  to 
Mr.  OHara  as  a  guide  for  some  of  his  amendments. 

You  will  be  kind  enough  to  observe  that  the  results  of  the 


112 


MAEITIME  LEGISLATION, 


Committee's  deliberations  are  marked  in  red  on  the  draft  of  the 
Bill. — I  hare  the  honour  to  be,  Sir, 

Your  obedient  humble  Servant, 
(Signed)  Ernst  Emil  Wendt,  Chairman. 

Return  of  the  Gentlemen  present  at  the  Proceedings  of  the 
Committee  on  General  Average  at.  their  Meetings  at 
3  Waterloo  Place,  Pall  Mall,  on  June  4,  5,  and  7,  1862. 


Eemarks. — The  I.,  II.,  and  III.  added  to  the  names  of  every  gentleman 
are  to  denote  the  meetings  on  which  he  has  joined  in  the  deUberations. 


Amsterdam 

Antwerp    . 
Boston,  U.S. 

Copenhagen 
Liverpool  . 

London 
Rotterdam 


J  E.  N.  Rahusen 
\  J.  Wertlieim 
r  Theodore  C.  Engels 
\  E.  van  Peborgh 

J.  Russell  Bradford 
r  Severin  Gram 
<  Svendson  . 
L  Edward  Thune 

L.  R.  Baily 

Lowndes    . 

P.  H.  Rathbone 

J.  Brown  . 

C.  Leathley 

O'Hara    (as   Draftsman    of  th 
Bill)  . 

W.  Richards 
\  Ernst  Emil  Wendt 

Driebeck  . 


I.  IL  III. 

I.  II.  IIL 

IL  III. 

I.  II.  III. 

I.  II.  IIL 

II.  IIL 

IL  IIL 

IL  IIL 

III. 

IIL 

IIL 

I.  II.  IIL 

III. 

III. 


}:.  „. 


IIL 
I.  II.  IIL 
IIL 


(Signed)  Ernst  Emil  Wendt, 

as  Chairman. 


London  :  June  9,  18G2. 


J)iiriiiLf  iIk'  i)iil)li<'  discussions  which  followed  in 
the  Guildh;ill.  ii  hcrniiic  evident  that  the  Committee  for 
iii;in:i<jiiiLi-  ihc  ;ill;rns  of  Lloyd's,  which  not  only  assisted  in 
iijili;i!iiiL''  lliis  inoxciiiciit,  hiil  iiiiiuediately  aflcr  llie  Glasgow 
Coii^n-ess  passed  lln-  ;il)ove  set  out  highly  complimentary 
resolution  on  the  siilijcct,  was  oflicially  wilhdrawiiig  from 
it.  The  letter  which  iniimaled  this  unexpected  event 
ran  as  follows  : — 


INTERNATIONAL  LAW   OF   GENERAL   AVERAGE.  113 

Lloyd's  (E.C.)  :  June  r-,  1862. 

Sir, — T  have  received  and  laid  before  the  Committee  for  manag- 
ing the  affixirs  of  Lloyd's  your  letter  of  May  30,  stating  that 
a  discussion  is  to  be  held  in  the  Trade  and  International  Law 
Department  of  the  National  Association  for  the  Promotion  of  iSocial 
Science,  on  the  amendment  of  the  law  of  '  General  Average,'  and 
inviting  some  representatives  of  the  Committee  to  attend  the  meet- 
ing ;  also  enclosing  a  copy  of  the  Bill  and  documents  relating  to 
the  subject. 

I  am  directed  to  inform  you  in  reply,  that  the  Committee,  having 
looked  over  the  heads  of  the  Bill,  and  given  the  subject  full  con- 
sideration, are  so  totally  opposed  to  the  several  clauses  contained 
in  the  Bill  in  question,  that  they  are  of  opinion  that  no  good  could 
arise  from  any  discussion  on  their  part,  and  they  therefore  do  not 
think  it  advisable  to  send  a  representative  from  their  body  to  the 
meeting. 

At  the  same  time,  they  request  me  to  assure  you  it  is  their 
earnest  wish  at  all  times  to  co-operate  with  parties  interested  in 
this  question,  when  they  see  any  opportunity  of  doing  so  with 
advantage  to  the  very  important  interests  at  stake. — I  am,  Sir, 

Your  obedient  Servant, 
(Signed)  Geo.  A.  Halsted,  Sccretari/. 

G.  W.  HastiiifTR,  Esq.,  Honorary  Secretary, 
National  Association  for  the  Promotion 
of  Social  Science. 

It  can  easily  be  understood  that  under  such  circum- 
stances the  first  step  which  the  assembled  delegates  took 
on  June  6,  when  the  congress  had  been  opened,  was 
to  desire  their  President  to  address  Lloyd's  Committee 
with  the  view  of  inducing  them  to  attend  (as  in  Glasgow) 
by  delegates.  The  meeting  of  the  congress  was  there- 
upon adjourned  to  June  9,  when,  as  no  notice  of  this 
communication  had  been  taken,  the  delegates  authorised 
their  President  to  write  to  the  Chairman  of  Lloyd's  the 
following  letter  : — 

I 


114  MARITIME   LEGISLATION. 

June  9,  1862. 
Sir, — I  have  been  authorised,  as  President  of  the  Department 
of  Trade  and  International  Law,  to  transmit  to  you  the  first  report 
of  the  Committee  on  General  Average,  as  laid  before  me  as  Presi- 
dent of  the  Department,  Avith  the  result  of  their  early  deliberations. 
Tou  udll  perceive  that  the  provisions  of  the  draft  Bill  have  been 
snbmitted  by  them  to  a  severe  examination,  and  that  they  have 
onlv  approved  forty  out  of  one  hundred  and  twenty-six  sections, 
whilst  they  have  voted  twenty-nine  sections  as  questionable,  and 
refeiTcd  back  tAventy-two  sections  for  amendment,  having  absolutely 
rejected  thirty  sections.  I  have  laid  before  the  Department  the 
letters  which  I  have  received  from  the  Secretary  of  your  Committee  ; 
and  in  consequence  of  the  impossibility,  as  expressed  by  the 
Secretary,  of  laying  the  communication,  made  by  me  on  behalf  of 
the  Department,  before  the  Committee  until  their  meeting  on 
Wednesday  next,  the  Department  has  adjourned  the  further  con- 
sideration of  the  question  until  Thursday  next,  in  the  confident 
hope  that  your  Committee  will  delegate  one  or  more  of  its  members 
either  to  discuss  the  question  before  the  Department,  or  to  confer, 
if  they  prefer  it,  with  the  Committee  on  General  Average,  whose 
names  you  will  find  inscribed  to  their  report.  From  the  discussions 
which  have  already  taken  place,  I  am  enabled  to  assure  your  Com- 
mittee that  it  is  the  earnest  wish  of  the  Foreign  members  of  this 
Association  who  are  interested  in  the  question  of  General  Averag-e, 
to  act,  if  possible,  in  co-operation  with  Lloyd's,  and  that  they  desii-e 
very  much  to  be  favoured  with  their  assistance  upon  many  branches 
of  the  subject,  in  which  their  great  experience  is  calculated  to  have 
great  influence  upon  the  decisions  of  the  Committee. 

I  am,  Sir,  &c., 
(Signed)  Tr avers  Twiss. 

To   this    coiniiiuiilcalioii    ihe   President    received   the 
following  answer : — 

Lloyd's  :  Juno  11,  1862. 
Sir, — "^'our  1( -tiers  of  the  rcsiiccf  iv(>  dates  of  June  G,  7,  and  9 
li;iv«-  this  day  been  read  to  llir  ( '(niitiiif tec  of  j;loyd'.s,  and  as  they 
considt'r  that  you  cannot  beawaic  of  (he  circumstances  under  which 


INTERNATIONAL    LAW   OF   GENERAL    AVET^A(!K.  lir, 

tliey  felt  precluded  from  sending  any  depnt.ition  of  their  body  to 
the  meeting  of  the  Trade  and  International  ]jaw  Department  of  the 
National  Association  for  the  Promotion  of  Social  Science,  they 
desire  shortly  to  recount  them. 

In  the  month  of  April  18(50,  on  the  receipt  of  a  letter  from 
Mr,  Rundell,  St^cretary  to  the  '  Liverpool  Committee  on  International 
General  Average,'  and  also  on  the  previous  solicitation,  personally, 
of  Mr.  Rathbone,  of  Liverpool,  this  Committee  readily  promised 
their  assistance  in  aid  of  the  Glasgow  meeting,  by  obtaining 
through  their  agents  abroad  such  information  on  the  system  of 
General  Average  as  was  desired. 

In  May  18G0  this  Committee  proceeded  further,  and  joined, 
through  their  Chairman,  Mr.  Thomas  Baring,  in  the  circular  signed 
by  about  twelve  of  the  Public  Associations  of  this  country,  in 
asking  the  attendance  of  delegates  from  abroad  at  the  meeting  at 
Glasgow. 

The  Committee  of  Filoyd's,  deeming  it  of  importance  that  the 
Glasgow  Conference  should  have  as  much  information  as  possible, 
forwarded  to  the  most  important  of  their  agents  copies  of  the 
Liverpool  Synopsis  of  Average  for  any  remarks  thereon,  and  in 
September  18G0  again  informed  them  of  the  necessity  of  their 
sending  an  early  reply  to  Mr.  Rundell.  In  September  18G0,  Mr. 
Leathley,  a  member  of  the  Committee  of  Lloyd's,  was  requested  to 
represent  the  Committee  at  the  Glasgow  meeting. 

In  October  1860,  Mr.  Leathley  reported  that  he  had  so  attended, 
and  that  resolutions,  of  which  I  enclose  a  copy,  were  passed,  on 
which  the  cordial  thanks  of  the  Committee  were  given  to  Mr. 
Leathley  for  his  trouble.  The  thanks  of  the  Committee  were  also 
given  to  those  gentlemen  who  had  attended  from  abroad,  and  the 
assurance  of  the  Committee  was  expressed  that  they  would  gladly 
co-operate  in  any  endeavours  to  amend  the  laws  referred  to  in  the 
resolutions. 

From  that  time  until  June  2  inst.  the  Committee  of  Lloyd's  have 
received  no  further  communication  on  the  subject,  but  on  Wednes- 
day last  the  following  letter,  addressed  to  the  Committee  of  Lloyd's, 
was  read,  dated  Old  Bond  Street,  May  30,  18C2  :— 

'  Gentlemen, — A  discussion  is  to  be  held   in   the  Trade  and 

I  2 


IIG  MARITIME   LEGTSLATIOX. 

International  Law  Department  on  the  amendment  of  the  law  of 
General  Averao-e.  We  should  be  obliged  if  some  representatives 
of  your  body  would  attend  the  meeting.  I  beg  to  enclose  a  copy 
of  the  Bill  and  documents  relating  to  the  subject. — I  am,  &c., 
(Signed)  G.  W.  Hastings,  Honoranj  Secretarij.' 

A  course  of  proceeding  so  completely  at  variance  with  the 
decision  of  the  Glasgow  Congress,  wherein  six  months'  notice  was 
provided,  and  the  sudden  call  at  a  day's  notice  to  consider  and  dis- 
cuss a  subject  so  difficult,  and  of  such  vast  and  varied  importance, 
left  the  Committee  of  Lloyd's  no  option  but  respectfully  to  decline 
taking  part  therein. 

I  am  further  to  convey  to  you  the  thanks  of  the  Committee  for 
your  having  informed  the  delegates  from  abroad  that  this  Committee 
could  not  intend  any  discourtesy  to  them.  The  cordial  support 
rendered  by  the  Committee  of  Lloyd's  in  1860  ought  to  prove  it, 
and  had  the  Committee  been  informed  that  those  gentlemen  had 
been  invited  to  attend,  they  would  with  pleasure  have  joined  in 
every  mark  of  courtesy  to  delegates  who  at  much  personal  incon- 
venience are  now  in  London. 

The  Committee  refrain  from  entering  on  the  numerous  objections 
which  are  apparent  on  the  face  of  the  proposed  alterations  by  the 
Bill,  but  on  receiving  from  the  congress  the  result  of  their  present 
discussions  will  be  ready  to  give  their  best  attention  to  it. 

Tlic  Committee  will  feel  obliged  if  you  will  read  this  communi- 
cation at  the  meeting  of  your  Department  to-morrow. — I  am.  Sir, 

Your  obedient  Servant, 
(Signed)  Geo.  A.  Halsted,  Secretarij . 

To  Doctor  TravcrR  Twiss,  President  of  the 
Department  of  Trade  and  International 
Law,  National  Association   for  the 
Promotion  of  Social  Science. 

Tliis  letter  was  presented  at  the  meeting  of  the  dele- 
pates  on  June  12,  which  thereupon  jointly  and  separately 
made  known  their  respertivc  jjiotcsts  against  the  conduct 
(.r  t1i('  Coiiiiiiitlce  for  inaji.'igiiig  the  nflairs  of  Lloyd's,  and 
agreed  iiiianiiiioiisly  that  no  ])iiblic  discussion  on  the  sub- 


INTERNATIONAL  LAW   OF  GENERAL  AVERAGE.  117 

ject  of  General  Average  should  take  place  on  this  occasion 
in  the  Guildhall. 

The  delegates  having  then  adjourned  to  my  offices,  a 
commencement  was  made  with  the  deliberation  of  such 
clauses  of  the  draft  liill  which  had  in  our  preliminary 
meetings  been  reserved  for  future  consideration,  and  the 
following  alterations  were  adopted,  viz.  : — 

1,  Interpretation  clause  to  be  amended  as  follows  : — 

'  General  Average  sacrifice '  shall  mean  a  prudent  and  extra- 
ordinaiy  sacrifice  of  property  made  by  the  master  in  order  to  avert 
an  unusual  and  imminent  peril  from  the  ship,  freight,  and  cargo. 

'General  Average  expenditure '  shall  denote  any  outlay  properly 
made,  or  any  liability  on  behalf  of  the  property  at  risk  properly 
incurred. 

5.  To  be  struck  out  altogether. 

15,  To  l)e  amended  as  follows  : — 

Loss  or  damage  caused  to  the  ship,  cargo,  and  freight  as  the 
immediate  and  necessaiy  consequence  of  a  voluntary  and  prudent 
stranding  of  the  ship  shall  be  deemed  to  be  a  General  Average  loss 
within  the  meaning  of  this  Act. 

In  order  to  complete  the  proceedings  of  this  rather  un- 
fortunate second  International  General  Average  Congress, 
the  draftsman's  alterations  to  the  13111,  which  he  based  on 
the  suggestions  of  the  preliminary  meetings  of  the  dele- 
gates, are  here  subjoined  : — 

IXTERPRETATIOX    CLAUSE. 

Section  1. — '  General  Average  sacrifice  '  shall  mean  a  prudent 
and  extraordinary  sacrifice  of  property  at  risk  in  the  adventure 
made  by  the  master  in  order  to  avert  an  unusual  and  imminent 
peril  from  the  ship's  freight  and  cargo. 

Line  27. — '  General  Average  expenditure '  shall  mean  a  prudent 
and  extraordinary  sacrifice  of  property  or  money  not  at  risk  in  the 
adventure,  in  order  to  avert  an  unusual  and  imminent  peril  from 
the  ship,  freight,  and  cargo.      (This  section  will  prevent  sales  of 


118  MARITIME   LEGISLATION. 

goods  at  Jin  interinediate  port  being  contributed  for,  as  tlioy  are 
at  present  contrary  to  principle,  as  expenditure.) 

Ship,  Fkeight,  and  Cargo. 

Section  15. — Loss  or  damage  immediately  and  necessarily 
caused  to  the  ship,  cargo,  and  freight  by  a  voluntary  and  prudent 
stranding  of  the  ship  shall  be  deemed  to  be  a  General  Average  loss 
within  the  meaning  of  this  Act. 

Cargo. 

To  Section  32,  suhjoin  :  Provided  that,  in  case  any  disagree- 
ment shall  arise  respecting  the  real  value  of  such  goods  so  recovered 
as  aforesaid,  the  same  shall  be  sold  by  public  auction,  and  the  pro- 
ceeds of  such  sale  shall  be  apportioned  amongst  the  parties  to  the 
adventure  in  proportion  to  the  amounts  of  their  respective  con- 
tributions. 

Intermediate  Expenses. 

Section  64. — Delete  the  words  '  and  of  the  wages  and  pro- 
visions for  the  crew  during  the  time  in  which  the  repairs  are  being 
made.' 

Estimation  of  General  Average  Losses. 

Section  75. — A  General  Average  sacrifice  of  property  at  risk 
in  the  adventure  (such  sacrifice  not  being  an  expenditure  within 
the  meaning  of  this  Act)  shall  not,  if  followed  by  a  total  loss  of  the 
ship  and  cargo,  be  contributed  for  in  any  manner. 

Section  80. — The  owner  of  goods  sold  at  an  intermediate  port 
to  pay  expenses  incni-rcd  in  respect  of  a  General  Average  sacrifice 
shall  in  no  case  in  wiiich  he  shall  be  entitled  to  a  General  Average 
contribution  suMrr  any  detriment  by  reason  of  such  sale  having 
been  made  at  an  intermediate  ])ort  instead  of  at  the  intended 
niarkrt  of  such  goods  il"  tlicy  had  conliiuicd  to  be  on  board;  but 
Hucli  owner  as  aforesaid  may,  on  the  other  hand,  retain  any  benefit 
rt;sidting  to  liim  from  such  sale  as  aloresaid  at  :in  intermcMliate  port 
l)y  reason  of  sucli  goods  as  aforesaid  lia\inL;-  I'elehed  ;i  higher  price 
at,  Mieli  interniediate  port  lliaii  thty  wouUl  have  lelciied  at  their 
inleiided  iiiai  ke|. 


INTERNATIONAL   LAW   OF  GENERAL   AVERAGE.         119 

Contributory  Interests  and  Values. 

Section  8G. — A  sacrifice  made  on  behalf  of  a  sliip  in  ballast, 
whether  chartered  or  not,  shall  not  be  deemed  to  be  a  General 
Average  act  within  the  meaning  of  this  Act. 

Section  91. — If  the  ship  alone  shall  be  liable  to  confiscation 
for  a  breach  of  international  law,  no  loss  sustained  by  the  shipowner 
in  order  to  avoid  such  confiscation  shall  be  deemed  to  be  a  General 
Average  loss  within  the  meaning  of  this  Act. 

Section  95. — Subject  to  the  provisions  of  this  Act,  the  con- 
tributory value  of  property  in  respect  to  a  General  Average  con- 
tribution shall  be  the  value  of  such  property  to  its  owner  at  the 
termination  of  the  adventure. 

Section  107. — In  estimating  the  contributory  value  of  freight 
with  respect  to  General  Average  contribution,  two-fifths  of  the 
value  of  the  wages,  ix)rt  charges,  and  other  expenses  shall  be 
deducted  from  the  value  of  the  gross  freight. 

Section  114. — In  respect  to  General  Average  contributions,  no 
deduction  shall  be  made  under  clause  107  for  any  freight  paid  in 
advance. 

Procedure- 
Section  120. — The  adjustment  of  a  General  Average  contribu- 
tion shall  be  made  at  the  ship's  port  of  destination,  within  fourteen 
days  after  her  arrival  at  such  port. 

Some  of  the  delegates  having  intimated  the  necessity 
of  their  returiiii]i>-  home,  it  was  not  thoiio-ht  advisable  to 
proceed  any  further  with  the  task  of  remodelling  tlie  draft 
13111,  but  in  order  to  try  if  the  so-much-desired  result  of 
one  uniform  system  of  General  Average  could  not  in  an}^ 
way  be  attained  the  following  resolutions  were  unani- 
mously agreed  upon,  viz.  : — 

1.  That  in  consequence  of  the  misconceptions  which  have  taken 
pla^e  since  the  Glasgow  meeting  of  the  National  Association  for 
the  Promotion  of  Sccial  Science  with  regard  to  the  General  Average 


120 


MARITIME   LEGISLATION. 


question,  unotlier  mode  of  proceediug  on  this  very  important  ques- 
tion be  adopted. 

2.  That,  for  the  purpose  of  attaining  this  object,  a  committee 
be  formed  in  order  to  decide  upon  and  bring-  into  shape  a  Bill,  or 
series  of  resolutions,  having  for  object  the  establishing  one  uniform 
srstem  of  General  Average  throughout  the  mercantile  world. 

3.  That,  in  the  opinion  of  this  meeting,  this  object  will  be  best 
attained  if  no  steps  be  taken  in  this  matter  without  the  sanction 
of  such  committee. 

4.  That  this  committee  consist  of  the  following  members  ' : — 


E.   E.   Wendt,  Esq.,  Chairman  of 

the  Coinmittee 
Richard  Lowndes,  Esq.,  Secretary 
Laurence  E.  Baily,  Esq.,  Liverpool 
J,  Russell  Bradford,  Esq.,  Boston 
L.  C.  Driebeck,  Esq.,  Rotterdam 
Theodore  C.  Engels,  Esq.,  Antwerp 
S.  Gram,  Esq.,  CojienJiagen 
G.  W.  Hastings,  Esq. 


Wni.  J.  Lamport,  Esq.,  Liverpool 
Edouard  van  Peborgh,  Esq.,  Ant- 
werp 
E.  N.  Rahusen,  Esq.,  Amsterdam 
P.  H.  Rathbone,  Esq.,  Liverpool 
R.  M.  Smith,  Esq.,  Edinburgh 
J.  J.  Suenson,  Esq.,  Copenhagen 
Edward  Thune,  Esq.,  C openhagen 
J.  Wertheim,  Esq.,  ^/Ms^e/'c/a/zi 


This  committee  went  vigorously  to  work.  In  order  to 
secure  a  broad  basis  of  action  and  so  obtain  the  counsel 
and  co-operation  of  those  in  all  maritime  countries  wlio 
Avere  most  conversant  with  the  sul)ject  of  General  Average, 
as  well  as  to  clear  their  own  opinions  by  full  discussion, 
it  was  determined  by  the  committee  to  draw  up  a  state- 
ment of  the  leading  arguments  on  either  side  of  what  may 
be  termed  the  disputed  questions  of  General  Average.  This 
was  j)ublisli('(l  and  coniniunicatod  to  the  different  members 
1()m-(mIici-  with  a  /'n>jet  de  Code  (submitted  by  Messrs. 
J'jigels  ,'111(1  \aii  Tcboi-Ldi  of  Antwcr})),  tlie  compilation  of 
the  Danish  Laws  on  ('ciicral  Axcfagc  (cmanatinii;  from 
Messrs.  (jrani,  Siicnson  and  'I'linnc  of  Copcnliagen),  and 
the  translal  ion  of  tlic  new  (icnnan  Law  on  Averaire  and 
►Salvage  (issued  by  myself).     The  diO'crcnl  members  of  the 


'  'i'lif  niiriics  (>{  tlif    ]L,'(iillciii(ii  ulifi  ullfi'wards  rel'ubeil   to  act  on  the 
Commitloc  liiivc  ui  coiusc,  been  ojiiitlcd. 


INIERNATIONAL   LAW   OF   GENERAL   AVERAGi:.  121 

committee  were  also  invited  to  slate  tlieir  o})iiiiou  upon 
the  several  (questions  raised  in  the  statement  and  the 
reasons  for  and  a|>ainst  them. 

May  1,  I860,  ha\iH!4-  ])een  fixed  as  the  date  for  the 
receipt  of  these  statements,  each  member  of  the  connnittee 
received  a  copy  of  the  same,  with  the  request  that,  before 
September  1,  I8C0,  a  hnal  statement  of  opinion  shoukl  be 
prepared,  showing  in  what  respects  (if  any)  his  previous 
opinion  liad  been  modified  by  the  arguments  of  otlier 
members  ;  and,  if  he  retained  his  original  opinion,  stating 
any  objection  he  might  wish  to  urge  against  the  arguments 
of  those  opposed  to  him. 

Of  the  sixteen  members  of  the  committee,  fourteen 
furnished  their  respective  observations  in  ten  pamphlets, 
and  six  members  further  suppHed  the  committee,  in  five 
pamphlets,  with  their  final  statements  of  opinion  on  the 
questions  at  issue,  and  the  follow^ing  was  the  result  : — 

The  report  (this  w^as  the  designation  given  to  the 
statement  of  the  leading  arguments  submitted  to  the 
committee),  which  w'as  divided  into  six  sections,  viz. — 
first,  preliminary  observations  ;  second,  leading  principles  ; 
third,  definitions  ;  fourth,  sacrifices — a,  of  cargo —  b,  of 
ship's  materials  ;  fifth,  extraordinary  expenses  ;  sixth,  con- 
tributions— raised,  in  reality,  tw^enty-three  questions,  on 
which  an  expression  of  opinion  was  considered  serviceable  ; 
and  as  several  members  of  the  committee  had  not  been 
present  when  the  Glasgow  resolutions  w^ere  passed,  it  was 
quite  natural  that,  in  order  to  ascertain  the  opinions  of 
all  the  members  on  all  questions  at  issue  in  this  con- 
troversy, the  discussion  on  the  Glasgow  points  should  be 
reopened. 

Now,  the  first  nine  questions  raised  by  the  report 
referred  most  immediately  to  the  leading  principles  and 
definitions,  in  tlieir  difiereiit  beariiigSj  as  to  whether  the 


122  MARITIME   LEGISLATION. 

common  safety  from  danger  of  total  loss,  or  the  common 
benefit,  that  is,  the  coinpletiou  of  the  adventure,  should 
be  considered  the  leading  j^nnciple  of  the  International 
General  Average  law. 

It  is  well  known  that  the  common  safety  theory  has 
been  that  which  is  commonly  called  the  English  practice ; 
whereas  npon  the  common  benefit  theory  the  other 
maritime  nations  of  the  world  had  mainly  based  their 
practice. 

Of  the  fourteen  members  of  the  committee  who  ex- 
pressed their  opinion,  only  one  was  in  favour  of  the 
common  safety  theory,  while  thirteen  declared  themselves 
in  favour  of  the  common  benefit  theory ;  so  that  the 
great  principle  which  had  been  carried  by  the  adoption 
of  the  Glasgow  resolutions  was  confirmed  by  a  very  large 
majority. 

The  tenth  question  referred  to  cargo  sacrificed  on 
account  of  its  vice-projire — a  point  not  raised  in  Glasgow 
—  and  was  unanimously  decided  as  not  allowable  in 
General  Average,  for  the  article  is  by  its  own  default  itself 
tlie  cause  of  the  danger. 

In  the  consideration  of  the  eleventh  question,  referring 
to  jettison  of  deck  cargo — another  point  not  raised  in 
(jlasgow — I  imagine  the  enactment  of  the  new  German 
law,  which  only  admits  jettisoned  deck  cargo  as  General 
Average  on  coasting  voyages,  must  have  had  considerable 
iiilliiciicc  u])(»ii  the  ojjiiiioiis  of  llic  majority  of  the  voting 
iiiciiil)ci-s ;  Ibi-  alilioiiL'ii  tlic  l)iisinc'ss  avocations  of  many 
iiiii>l  lia\('  iii;i(l<'  tliciii  ;i\\ai-c  lliat,  for  certain  trades,  par- 
ticular vessels  arc  hiiill  which  will  load  oiic-lil'tli,  or  even 
one-fourth  of  thcii'  wliolc  cargo  on  deck,  the  \()tes  were 
c'X])ressed  in  a  niaiiiicr  which  showed  that  considerable 
(loiil)t  cxislcd  oil  ihc  suhjcct.  I  (iiid  live  votes  w'ere  given 
in  I'aNoiir  of  llic  pi-opo,v;il  ;   |i\c  \()t{'s  aiiiicd  at   restricting 


INTERNATIONAL   LAW   OF  GENERAL   AVERAGE.         123 

the  pi'opo.siil  U)  coasting  A'oyages  ;  and  oi"  the  renuuning 
two  votes,  one  totally  negatived  the  proposal,  and  the  other 
in  fact  did  the  same  by  proposing  that  any  such  jettison 
should  be  divided  between  the  shipowner  and  the  owner 
of  the  deck  cargo. 

The  twelfth  question — damage  to  cargo  in  effecting 
jettison — corresponding  to  the  third  Glasgow  resolution, 
produced  five  opinions  in  favour  of  reversing  that  resolu- 
tion, while  two  of  the  live  votes  adhering  thereto  were 
accompanied  by  a  declaration  that  such  adhesion  was 
only  given  because  the  resolution  had  been  passed  at 
Glasgow. 

The  thirteen  votes  given  upon  the  thirteenth  question 
— damage  to  cargo  by  forced  discharge — entirely  con- 
firmed the  fourth  Glasgow  resolution,  to  which  it  was 
similar. 

The  fourteenth  question — damage  to  cargo  in  extin- 
guishing a  fire — treated  of  in  the  second  Glasgow  resolu- 
tion, was  confirmed  by  eight  votes. 

Upon  the  fifteenth  question — loss  of  cargo  by  a  sale  to 
raise  funds — the  report  proposed  that  such  loss  should 
be  treated  like  a  bottomry,  that  is,  apportioned  over  the 
expenses  for  which  it  was  sold,  and  that  any  profit  should 
belontj^  to  the  owner  of  the  o-oods.  Five  of  the  ei<>lit  votes 
given  adopted  the  proposal  purely  ;  one  added  that  the 
shipowner  should  be  indenniified  for  loss  of  freight ;  and 
five  were  of  opinion  that,  whereas  the  loss  should  be  made 
good  as  proposed,  any  profit  arising  should  not  belong  to 
the  owner  of  the  goods,  but  should  be  for  the  benefit  of 
the  connnon  adventure. 

The  sixteenth  question — the  cutting  away  of  wreck — 
was  considered  by  the  fifth  Glasgow^  resolution  not  ad- 
missible in  General  Average.  This  was  confirmed  by  ten 
voles  against  one  vote.        _ 


124  MARITIME   LEGISLATION. 

The  seventeenth  question — damage  by  scuttling  a  ship 
to  put  out  a  fire — was  inckicled  in  the  se(!ond  Glasgow 
resolution,  and  here  declared  allowable  in  General  Average 
by  four  votes  against  one. 

The  eighteenth  question — damage  by  intentional 
stranding— proved  to  be  most  intricate.  The  first  Glasgow 
resolution  stated  that  such  damage  was,  as  a  general  rule, 
not  admissible  in  General  Average,  but  without  prejudice 
to  a  claim  in  exceptional  cases  upon  clear  proof  of  special 
facts.  The  vao'ueness  of  the  wordinf;  of  this  resolution 
must  prove  that  the  argumentations  on  both  sides  were 
so  nice  that  it  was  impossible  to  come  to  an  understand- 
ing upon  any  other  basis.  It  is  not  unlikely  that,  this 
being  the  case,  the  first  Glasgow  resolution  would  have 
been  confirmed  by  the  majority  of  the  committee,  if  the 
new  German  law  had  not  made  an  enactment  which,  ac- 
cording to  my  humble  opinion,  ought  to  satisfy  everybody, 
in  conse(pience  of  its  meeting,  in  the  plainest  terms,  the 
principles  involved.  This  enacts,  in  section  708,  that  such 
damages  as  are  caused  by  the  ship  being  purposely  run 
ashore  to  prevent  sinking  or  capture,  and  after  being 
successfully  got  off  is  found  capable  of  repair,  is  General 
Average.  I  find  that  four  votes  were  decidedly  in  favour 
of  the  German  ciiactmcnt  and  one  vote  partially  so; 
whereas  one  \()le  was  gi\en  in  fa\'our  of  the  Glasgow 
resolutions,  and  to  tlie  other  eight  votes  various  restrictions 
wci"<*  a1  la<-li<*(l. 

rpoii  ilic  iiiiiclcciilh  (question — damage  1)y  carrying  a 
press  oi"  sail-  tlic  scwuth  Glasgow  resolution  was  con- 
fiiiiicd  by  six  votes. 

The  twentieth  (pu'stion^the  port  of  refuge  expenses 
— wliich  liad  been  declared  by  the  sixth  Glasgow  resolu- 
tion as  admissible  in  Clcneral  A\-erage,  was  confirmed  Ijy 
thill  ecu  Notes  against  one  \ole. 


INTERNATIONAL  LAW  OF  GENERAL  AVERAGE.         125 

The  twenty-first  question  treated  of  two  points — wages 
and  provisions  of  the  crew  at  a  port  of  refuge,  and  loss  of 
market.  The  first  part  of  this  question  was,  in  conformity 
witli  the  eighth  Glasgow  resolution,  considered  to  be 
admissible  in  General  Average  by  eleven  votes,  against 
three  who  held  it  inadmissible  either  on  principle  or  for 
practical  reasons.  The  seven  votes  which  were  given  on 
the  second  part  of  the  question  w^ere  unanimous  in  not 
allowing  the  loss  of  market  in  General  Average. 

Upon  the  twenty-second  question — contributing  values 
— ten  votes  were  given  in  conformity  with  the  ninth 
Glasgow  resolution,  wdiich  considered  the  ultimate  value 
liable,  against  one  vote  which  was  in  favour  of  the  value 
at  the  port  of  refuge. 

The  twenty-third  and  last  question — deductions  from 
freight — regulated  by  the  eleventh  Glasgow  resolution, 
gave  rise  to  a  very  interesting  discussion  in  one  of  the 
preliminary  meetings  to  the  London  Congress,  where  a  pro- 
posal was  made  to  modify  the  present  practice  by  fixing 
upon  a  certain  proportion  of  the  freight  to  contribute  to 
the  General  Average.  The  German  law  having  adopted 
a  similar  principle,  which,  for  practical  reasons,  would 
undoubtedly  be  very  acceptable,  it  was  to  be  regretted 
that  only  six  members  expressed  their  opinion  on  the 
subject  at  all,  and  these  six  were  equally  divided  between 
adhering  to  the  old  practice  and  tlie  adoption  of  a  fixed 
proportion ;  so  that,  in  reality,  this  remained  an  open 
question. 

These  different  pamphlets,  with  the  other  papers  re- 
ferred to  above,  were  bound  together  in  a  volume  entitled 
'  Transactions  of  the  International  General  Average  Com- 
mittee ' ;  its  circulation  took  place  in  January  1864. 

Some  months  afterwards  it  was  decided  that  the  third 
International  General  Average  Concfress  should  meet  on 


126  MAPJiniE   LEGISLATION. 

September  26,  18G4,  in  the  city  of  York,  and  that  the 
followincT  draft  of  a  Bill  was  to  be  taken  as  a  basis  for 
its  deliberations : — 

Whereas  it  is  expedient  tliat  tliere  should  be  uniformity  in  the  law 

of  General  Average    amongst  all  maritime  communities,  and 

that,  in  order  to  promote  such  uniformity,  certain  amendments 

should  be  made  in  the  rules  to  be  observed  in  the  adjustment 

of  claims  for  General  Average  made  in  any  port  or  place  within 

the  United  Kingdom  of  Great  Britain  and  Ireland ; 

Be  it  therefore  enacted,  &c.  &c.     That  on  and  after  the     day  of 

the  following  rules  shall  be  observed  in  the  adjustment  of 

all  claims  for  General  Average  made  in  the  United  Kingdom  of 

Great  Britain  and  Ireland  : — 

Section  I. — A  jettison  of  timber  or  deals  carried  on  the  deck 
of  a  ship  in  pursuance  of  a  general  custoin  of  the  trade  in  which 
the  ship  is  then  engaged,  shall  be  made  good  as  General  Average, 
in  like  manner  as  if  such  cargo  had  been  jettisoned  from  below 
deck. 

No  jettison  of  deck  cargo,  other  than  timber  or  deals  so  carried 
as  aforesaid,  shall  be  made  good  as  General  Average ;  but  if  the 
shipment  on  deck  have  been  made  without  the  consent  or  sanction 
of  the  shipper  or  owner  of  such  cargo,  the  loss  resulting  from  such 
jettison  shall  be  made  good  by  the  owner  or  owners  of  the  ship  ; 
whereas,  if  such  shipment  have  been  made  with  the  consent  or 
sanction  of  such  shipper  or  owner,  the  loss  of  cargo  shall  fall  upon 
such  shipper  or  owner. 

Cargo,  which  is  in  a  deck-house,  poop,  or  topgallant  forecastle, 
shall,  for  the  purposes  of  this  Act,  be  treated  as  cargo  laden  on 
d<'ck. 

Section  II. — Damage  done  to  goods  or  merchandise  by  water 
which  unavoidably  goes  down  a  ship's  hatches  when  opened  for  the 
purpose  of  making  a  jettison,  shall  be  made*  good  as  General  Average, 
in  case  the  loss  by  jettison  is  so  nuide  good. 

Damage  done  by  breakage  and  clinling  or  otherwise  from  de- 
rangement of  stowage  consecpicnl.  ii|)oii  a  jettison,  shall  not  be 
made  good  as  (icneral  Av('rag<\  but  sliall  fall  upon  the  owners  of 
•the  goods  so  daniMgcd  or  <hi'ir  iindci'wrilrrs. 


INTERNATIONAL  LAW   OF  GENERAL   AVERAGE.  127 

Section  III. — Damaf^c  intentionally  done  to  a  ship  or  cargo 
for  the  purpose  of  extinguisliiiig  a  fire  on  board  ship,  and  damage 
done  by  water  poured  in  or  admitted  through  scuttlc-holes  or 
otherwise  for  the  said  purpose,  shall  be  made  good  as  General 
Average. 

Section  IV. — Damage  done  by  cutting  away  the  wreck,  or 
remains  of  spars  or  other  things  which  have  previously  been  carried 
away,  or  permanently  displaced  by  sea  peril,  shall  not  be  made 
good  as  General  Average. 

Section  V. — If  a  ship  is  intentionally  run  ashore  in  order  to 
avoid  capture  or  foundering,  and  is  afterwards  got  off  and  repaired, 
all  damage  caused  either  to  the  ship  or  cargo  on  board  by  such 
running  ashore  shall  be  made  good  as  General  Average. 

If  a  ship  has  been  intentionally  run  ashore  as  aforesaid,  but  is 
not  afterwards  got  off  the  shore,  or  being  got  off  is  found  insepar- 
ably damaged,  or  so  damaged  as  not  to  be  worth  repairing,  no 
compensation  in  the  way  of  General  Average  shall  be  made  for  tlie 
damage  caused  by  such  running  ashore. 

Section  VI. — Damage  occasioned  to  a  ship  or  cargo  b^^  carry- 
ing a  press  of  sail  shall  not  be  made  good  as  General  Average. 

Section  VII. — ^When  a  ship  shall  have  entered  a  port  of  refuge 
under  such  circumstances  that  the  expenses  of  entering  the  port 
are  admissible  as  General  Average,  and  when  she  shall  have  sailed 
thence  with  her  original  cargo,  or  a  substantial  part  of  it,  the  cor- 
responding expenses  of  leaving  such  port  shall  likewise  be  so 
admitted  as  General  Average  ;  and  whenever  the  cost  of  discharging 
cargo  at  such  port  is  admissible  as  General  Average,  the  cost  of 
reloading  and  stowing  such  cargo  on  board  the  said  ship,  together 
with  all  storage  charges  on  such  cargo,  shall  likewise  be  so  admitted. 
Section  VIII.— When  a  ship  shall  have  entered  a  port  of 
refuge  under  the  circumstances  defined  in  Section  VII.,  the  wages 
and  cost  of  maintenance  of  the  master  and  mariners,  from  the  time 
of  entering  such  port  until  the  ship  shall  have  been  made  ready  to 
proceed  upon  her  voyage,  shall,  subject  to  the  provisoes  undernamed, 
be  made  good  as  General  Average. 

Provided  that,  if  reasonable  dispatch  be  not  used  in  repairing 
or  otherwise  getting  the  vessel  to  sea,  no  allowance  for  wages  or 


123  MAEITIME   LEGISLATIOX. 

maintenance  sliall  be  made  in  respect  of  the  time  so  improperly 
expended. 

Provided  also,  that  no  allowance  shall  be  made  for  wages  or 
maintenance  as  above  in  case  the  ship  shall  be  condemned  at  such 
port  as  irreparable,  or  not  worth  repairing,  or  in  case,  for  any  other 
lawful  cause,  the  cargo,  or  a  substantial  part  of  it,  shall  not  be  re- 
laden  on  board  such  ship  for  the  purpose  of  further  transport. 

Sectiox  IX. — Damage  done  to  cargo  in  the  act  of  dischai'ging 
it  at  a  port  of  refuge  shall  not  be  admissible  as  General  Average, 
in  case  such  cargo  shall  have  been  discharged  at  the  place  and  in 
the  manner  customary  at  that  port  with  ships  not  in  distress. 

Section  X. — The  contribution  to  a  General  Average  shall  be 
made  upon  the  actual  values  of  the  property  at  the  termination  of 
the  adventure,  to  which  shall  be  added  the  amount  made  good  as 
General  Average  for  property  sacrificed ;  deduction  being  made 
from  the  shipowner's  freight  at  risk  of  that  portion  of  the  crew's 
wages,  and  the  port  charges  on  the  ship,  the  liability  for  which  is 
contingent  upon  the  earnings  of  such  freights. 

In  case  the  amount  to  be  made  good  shall  exceed  the  aggregate 
of  contributory  values,  computed  as  above  stated,  such  aggregate 
shall,  in  the  first  instance,  be  taken  towards  satisfying  the  General 
Average,  and  the  excess  of  the  General  Average  shall  then  be 
apportioned  as  if  the  ship  and  entire  cargo  on  board  or  at  risk  at 
the  time  of  doing  the  act  or  measure  which  has  given  rise  to  the 
General  Average  had  reached  the  port  of  destination  free  from 
damage. 

The  proneedintfs  of  this  Congress  were  then  opened  on 
Se])teniher  20,  1804,  by  the  Eight  Honourable  Sir  James  P. 
Wilde,  Kniglit  (now  Lord  Penzance),  with  the  following 
words  : — 

We  will,  if  yon  idcase,  at  once  cuter  upon  ilu'  business  of  the 
day;  bnf  before  doing  so  I  wish,  on  the  ])art  of  the  Social  Science 
Association,  of  which  I  have  the  honour  to  be  a  member,  to  tender 
our  best  thanks  to  those  gentlemen  who  have  been  good  enough  to 
come  to  attend  this  Congress,  doubtless  in  some  cases  at  great 
trouble  ()!•  didieully,  fi'oiii  (liHiTeiil   p.'irts  of  the  world,  to  t;ike  part 


INTEUXATIONAL   LAW   OF   GENERAL   AVERAGE.  W.) 

in  this  discussion.  The  Association  feels  that  it  is  only  by  this  sort 
of  common  effort  on  the  part  of  those  belonging  to  the  mercantile 
community — gentlemen  interested  in  the  commercial  affairs  of  the 
different  countries  to  which  they  belong,  such  as  those  I  now  see 
before  me — that  any  great  practical  measure  can  be  successfully 
discussed  and  carried  out.  It  is,  therefore,  right  that  our  thauks 
should  be  tendered  to  all  those  who,  by  their  presence  on  this 
occasion,  show  their  willingness  to  aid  us  in  the  attainment  of  our 
present  object.  I  will  now  call  upon  Mr.  Wendt,  the  Chairman  of 
the  International  General  Average  Committee,  for  his  introductory 
observations. 

j\[r.  AVendt.  It  having  been  arranged  that  I,  in  my  capacity  as 
Chairman  of  the  International  General  Average  Committee,  am  to 
open  the  proceedings  of  the  Third  International  Genei-al  Average 
Congress  with  an  introductory  statement,  I  beg  your  attention  to 
the  following  observations  which  I  consider  it  my  duty  to  address 
to  you. 

The  first  public  step  in  favour  of  uniformity  in  legislation  on 
General  Average  was  made  by  the  circular  issued  May  3,  18G0,  by 
the  President  and  General  Secretary  of  the  National  Association 
for  the  Promotion  of  Social  Science,  the  Chairman  of  Lloyd's,  the 
Chairman  of  the  London  General  Shipowners'  Society,  the  Chair- 
man of  Lloyd's  Salvage  Association,  and  the  Chairmen  of  the 
Chambers  of  Commerce,  the  Underwriting  Associations  and  others 
of  Liverpool,  Glasgow,  Hull,  and  Bristol. 

This  circular  contained,  in  the  plainest  possible  language,  the 
admission  of  these  bodies  that  the  system  of  General  Average  is 
one  which,  to  prevent  confusion  and  injustice,  pre-eminently  re- 
quires that  the  same  principles  should  be  acted  upon  by  the  chief 
maritime  nations;  that  the  uncertainty  of  the  law  on  General 
Average  is  peculiarly  felt ;  that  much  loss  is  occasioned  to  the 
mercantile  community,  and  much  valuable  time  is  worse  than 
wasted,  through  business  being  impeded  by  misunderstandings  and 
irritated  feelings ;  that  the  evils  of  such  a  state  of  things  are 
notorious  and  unquestioned ;  that  although  the  difficulties  in  the 
way  of  uniformity  in  General  Average  legislation  are  no  doubt  con- 
siderable, they  are  far   from   being  insuperable  ;   and  that,  in  order 

K 


130  MAIUTIME   LEGISLATION. 

to  remove  this  most  unnecessary  element  of  irritation  between 
assured  and  underwriter,  the  most  important  commercial  bodies 
of  the  chief  maritime  nations  shoukl  be  invited  to  send  delegates 
to  that  nieetino-,  which  is  now  better  known  as  the  First  International 
General  Average  Congress  at  Glasgow. 

After  I  had  minutely  referred  to  all  tlie  proceedings  in 
Glaso-ow  and  London,  and  tlie  preliminary  steps  taken  by 
the  International  General  Average  Committee  preparatory 
to  this  York  Congress,  all  of  which  are  fully  set  out  in  the 
foreo-oing  pages,  I  concluded  my  address  as  follows : — 

The  committee  is  quite  aware  that  this  draft  Bill  does  not  con- 
tain evervthing  which  it  might  be  desirable  to  embody  in  an  Act 
on  General  Average;  but  it  appeared  to  those  members  of  the 
committee  who  had  the  principal  charge  of  its  action,  that  the 
diffei'ences  of  opinion  still  existing  on  the  most  important  principles 
of  General  Average  would  inevitably  necessitate  at  least  a  post- 
ponement of  this  public  discussion,  if  they  were  not  satisfied  with 
those  enactments  which  they  have  now  been  enabled  to  present ; 
and  I  do  not  hesitate  to  say,  that  the  amendments  proposed  by 
some  very  eminent  and  learned  persons  in  the  law  of  General 
Average,  prove  to  me  very  decidedly  that  a  very  large  and  respect- 
able majority  is  of  the  committee's  opinion,  that  we  do  not  absolutely 
require  a  complete  codification  on  General  Average.  But  for  our 
purpose — I  mean  for  the  establishment  of  international  uniformity 
— it  will  suffice  that  the  important  principles  proposed  in  our  draft 
Bill  should  be  agreed  upon  and  carried  into  effect. 

I  ought  to  observe,  that  Dr.  Travers  Twiss  having  revised  and 
approved  ol'tlie  dral't  I  Jill  in>w  before  you,  it  is  sufficiently  vouched 
as  containing  nothing  (ibjrcl  iniKible  in  respect  of  leg.il  phrase- 
ology. 

T  hiive  now  to  say  a  few  woi-ds  as  to  some  of  the  observations 
wliicli  arc  roiitaiin'il  in  tlic  ]i;iiii|ililcl  of  the  Icai'ned  delegate 
wlioiii  ili(!  gMVci'iiiiicnts  of  I  lainliiii'g  and  Lubcck  (lid  us  the 
lioiioiir  to  send  to  this  congress,  and  which  1  am  sorry  to  say 
would,  if  i\u'.  case  as  slated  were  in  reality  borne  out  by  the  facts, 
show  consiilrrablc  sliortsighti'dncs-;  on    I  lie  part  of  I  lie  niendxn'S  of 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.  ];3L 

the  International  General  Average  Committee.  The  learned  dele- 
gate states  that  four  classes  of  persons  are  principally  interested  in 
our  movements,  viz. : — 1.  The  shipowners  and  merchants.  2.  The 
underwriters.     3.  The  average-staters.     4.  The  lawyers. 

Now,  I  think  that,  if  he  considers  the  various  avocations 
of  the  sixteen  members  composing  our  committee,  he  will  find 
that  all  these  classes  are  fully  represented  in  it ;  and  there  will 
then  only  remain  liis  objection,  that  from  the  secluded  life  the 
committee  has  led,  the  different  foreign  Governments  have  not  been 
sufficiently  interested  in  the  movement. 

That  lier  Majesty's  Ciovernment  views  this  movement  with  great 
interest,  and  is  willing  to  assist,  as  far  as  lies  in  its  power,  in  the 
attainment  of  uniformity  in  international  General  Average  legis- 
lation, her  Majesty's  consular  officers  were  authorised  to  declare  to 
the  Governments  of  their  respective  districts,  at  the  request  of  the 
Liverpool  Chamber  of  Commerce,  which  body  was  among  the  first 
originators  of  this  movement. 

With  reference  to  the  other  Governments  which  are  not  repre- 
sented among  us,  I  can  only  say  that  a  perusal  of  the  corre- 
spondence and  papers  of  the  committee  will  satisfy  everybody  that 
we  did  what  we  jDossibly  could  to  obtain  the  largest  possible  co- 
operation, both  here  and  abroad.  But  if  we  consider  that  the 
principal  obstacle  to  the  attainment  of  uniformity  in  international 
General  Average  legislation  does  not  arise  abroad — for  only  slight 
differences  on  the  minor  points  under  discussion  exist  among  the 
other  maritime  nations — but  is  attributable  to  the  pertinacity  with 
which,  in  this  country,  the  principles  hitherto  acknowledged  have 
been  adhered  to  ;  then,  I  think,  the  most  natural  course  of  pro- 
ceeding was  to  invite  as  much  voluntary  co-operation  as  possible 
from  abroad,  for  the  discussion  and  determination  of  what  our 
international  law  ought  really  to  be,  without  engaging  to  propose 
such  law  for  the  adoption  of  foreign  Governments  before  it  had 
been  adopted  and  passed  by  the  British  Legislature. 

The  committee  intend  to  follow  with  this  law  the  same  course 
as  had  been  pursued  with  reference  to  some  other  enactments — as, 
for  instance,  the  navigation  clauses  of  the  INferchant  Shipping 
Amendment  Act  of  18G2,  which  were  first  passed  in  this  countrv. 


182  MARITIME   LEGISLATIOX. 

and  adopted  by  tlie  other  maritime  nations,  who  would  certainly 
feel  less  objection  when  they  saw  that  what  the  British  Government 
submitted  for  their  adoption  was  the  result  of  the  discussions  of 
an  international  congress  of  gentlemen  so  well  qualified  to  assist 
therein. 

The  committee  has  strengthened  itself  by  inviting  to  its 
deliberations  the  delegates  who  have  expressed  their  willingness  to 
assist  cordially  in  its  labours,  and  it  is  to  be  hoped  that,  after  this 
congress  has  arrived  at  a  determination  as  to  what  clauses  the  draft 
Bill  is  to  contain,  the  committee  may  be  empowered  to  take  imme- 
diate steps  to  lay  the  results  of  the  labours  of  the  congress  before 
the  Board  of  Trade,  at  the  time  most  convenient  to  insure  the 
attendance  of  the  delegates  who  here  honour  us  with  their 
presence. 

I  sincerely  hope  that  the  third  congress  may  really  succeed  in 
leading  to  a  practical  result. 

The  Chairman.  The  statement  that  has  just  been  read  has 
placed  us  all  in  possession  of  a  great  deal  of  information  very  use- 
ful at  this  moment  for  the  attainment  of  this  most  desirable  end, 
and  we  shall  presently  proceed  to  consider  the  specific  clauses  of 
the  Bill  proposed  to  be  brought  before  Parliament  -with  that  view. 
All  present  have,  no  doubt,  acquainted  themselves  fully  and  entirely 
with  the  objects  of  this  congress,  and  not  only  so,  but  also  with 
the  views  of  those  who  do  not  entirely  agree  with  them ;  and  as  to 
those  who  have  not  done  this,  the  printed  book  which  I  have  before 
me'  will  place  them  in  a  position  to  judge  of  the  matter.  Before 
we  proceed  further,  I  think  that  we  ought  to  ascertain  to  what 
extent  different  bodies  of  persons  interested  in  this  subject  are 
represented  here. 

Captain  llalsted,  II. N.,  the  secretary  of  Lloyd's,  then  handed  the 
following  letter  to  the  Chairman,  which  he  read : — 

TJoyd's  (K.C.)  :  SoptoniLor  21,  1864. 
Sir, — Within   till-  year  ISOO,  jlic  subjcrt  of  an   'International 
uniform  sysli-m   oi'  udjusling  (I'l-iicrai   Average'  was  first  brought 
under   the  notice-  (jfllie   Conniiiltee   for   managing  the  aflairs  of 

'  Tlie   above  referred   to  :   Tninnuclioiia  of  tin-  Lilmuiliojial  General 
Avcratje  Ccvnnillee.. 


INTERNATIONAL   LAW   OF   GKNEllAL    AVl^llAGIi:.  l.}3 

Lloyd's,  than  whom  probably  no  conuuerciul  body  are  better 
capable  of  appreciating  the  inconveniences  resulting  from  the 
diversity  of  practice  among  different  countries.  They  cheerfully 
co-operated  with  the  promoters  of  the  movement,  and  by  the 
courtesy  of  their  agents  in  foreign  ports,  much  valuable  informa- 
tion was  afforded  to  the  International  Association. 

The  circumstances  which  prevented  this  Committee  attending 
the  meeting  held  in  1862,  in  London,  have  already  been  stated 
in  a  letter  dated  June  11,  1862,  addressed  to  Dr.  Travers  Twiss, 
the  then  president  of  the  meeting,  and  need  not  be  further 
referred  to. 

As  regards  the  forthcoming  discussion  in  York,  to  which  this 
Committee  have  had  the  honour  to  be  invited,  it  would  have  been 
gratifying  to  them  could  they  have  felt  themselves  justified  in 
taking  part  therein.  But  it  is  with  surprise  and  regret,  that  on  a 
perusal  of  the  various  preparatory  papers  and  documents  with 
which  they  have  been  favoured,  this  Committee  find  that  the 
approaching  meeting,  instead  of  being  constituted  for  the  purpose 
of  its  original  object  (viz.  the  consideration  of  the  laws  of  various 
countries,  with  a  view  to  attempt  their  assimilation)  has  resolved 
itself  into  a  committee  for  the  purpose  of  effecting  an  alteration 
solely  in  the  English  law. 

The  draft  Bill  which  is  to  be  submitted  seeks  to  establish 
uniformity  in  the  adjustment  of  General  Average  by  the  sacrifice 
of  some  of  the  most  valuable  points  in  English  custom,  in  favour 
of  the  most  objectionable  as  administered  abroad,  and  which  the 
Committee  consider  would  have  a  very  prejudicial  effect  upon  the 
liability  of  owners  of  cargo,  whose  interest  throughout  the  proposed 
Bill  would  appear  to  be  made  subordinate  to  those  of  the  shipowner. 
The  proposed  Bill  would  also  largely  add  to  the  abuses  and  mis- 
understandings which  arise  under  the  existing  system. 

While  this  Committee  are  of  opinion  that,  in  the  interests  of 
the  commercial  world,  whether  merchants  or  shipowners,  a  unifonu 
law  is  much  to  be  desired,  they  do  not  see  the  means  to  attain 
this  end  in  the  proposals  of  the  sub-committee,  and  therefore  feel 
themselves  compelled  to  refrain  from  the  present  agitation  of  the 
subject. 


134  mahitime  legislation. 

The  secretary  of  Lloyd's,  Captain  Halsted,  is  requested  to 
attend  at  tlie  opening  of  the  General  Average  congress,  for  the 
purpose  of  presenting  this  letter  to  the  Chairman. — I  am,  Sir, 

Your  obedient  Servant, 
Thomas  Baring,  Chairman  of  Lloyd's. 

The  Honoiu-able  Sir  James  Plaisted  Wilde,  President 

of  the  Average  Section  of  the  Social  Science 

Association,  York. 

Mr.  J.  A.  W.  Harfer,  the  Secretary  of  the  Salvage  Association, 
then  handed  the  following  letter  to  the  Chairman,  which  he  likewise 
read  : — 

Association  for  the  Protection  of  Commercial  Interests,  as 
RESPECTS  Wrecked  or  Damaged  Property. 

Lloyd's  :  Sept.  29,  1864. 
To  the  Honoiirahle  SiR  James  Plaisted  Wilde,  Chairman  of  the 
General  Average  Section  of  tlte  Social  Science  Association,  at 
York. 

Sir, — We,  the  Chairman  and  Vice-Chairman  of  the  Association, 
beo-,  at  the  request  of  the  Committee,  to  communicate  to  you,  for 
information  of  the  meeting  of  the  above-mentioned  section  of  the 
Social  Science  Association,  the  opinion  of  the  Committee  on  the 
draft  of  the  Bill  which  is  intended  to  be  laid  before  that  meeting. 

When  the  subject  was  first  raised,  the  Committee  regarded 
the  meeting  of  the  Social  Science  Association  as  a  Congress  of 
experts  from  various  countries,  assembled  to  discuss  the  principles 
of  General  Average,  and  especially  the  chief  points  of  difference 
in  laws  and  ]  tract  ice  between  ^■arious  countries  of  Europe  and 
America. 

'J'he  Conitiiittt'e  were  int'inncd  thai,  as  a  result  of  the  discussion 
at  Glasgow,  it  was  looked  upon  as  nut  altogether  impossible  to 
obtain  the  adhesion  of  the  leading  maritime  nat  ions  of  the  world 
to  an  International  Codi'  of  (ieneral  Average. 

Altliough  the  Committee!  did  not  consider  that  the  ]traetieal 
consefjuences  of  tlu^  eonlliet  of  laws,  on  the  siiliject  of  (uMU'ral 
Average,  are  so  serious  as  to  rci|iiii-e  t  his  greiil  niaehinerv  to  be  put 


INTERNATIONAL   LAW    OF   GENlliAI,    AVERAGE.  ]«o 

in  force  to  avoid  them,  yet  they  were  sincerely  desirous  to  aid,  as 
far  as  they  could,  any  attempt  that  might  be  made  with  that 
object. 

Thev  oliserve,  however,  tluit,  instead  of  an  international  code, 
it  is  intended  to  take  the  discussion  on  a  proposed  English  Act  of 
Parliament.  The  Committee  presume,  then,  that  all  idea  of  an 
international  code  is  abandoned.  They  are  confirmed  in  this  im- 
pression by  the  circumstance  that  some  of  the  most  important 
maritime  nations  have  taken  no  part  whatever  in  any  of  the 
proceedings  up  to  this  time. 

Without  saying  what  opinion  they  would  entertain  on  any  of 
the  serious  changes  in  English  law  contemplated  in  this  Act,  if 
they  had  been  proposed  as  a  part  of  a  General  International  Law, 
the  Committee  regret  that  they  find  themselves  compelled  to 
decline  taking  any  part  in  the  consideration  of  them  as  simply 
reforms  of  the  law  of  England. 

At  the  same  time  that  they  do  not  consider  they  are  called 
upon  to  say  what  course- they  would  finally  take  under  the  above- 
mentioned  conditions,  they  are  anxious  it  shonld  be  understood 
that  some  of  the  provisions  of  the  present  proposed  Bill  seem  to 
them  so  objectionable,  that  they  can  hardly  imagine  the  circum- 
stances under  which  they  could  be  prepared  to  assent  to  them. 

In  thus  abstaining  from  all  active  participation  in  proceedings 
which  appear  to  be  intended  partly  to  effect  large  alterations  of  the 
law  of  this  country,  and,  in  part,  apparently  to  commence  a  codifi- 
cation of  the  rest,  but  not  with  a  view  to  establish  an  international 
code,  the  Committee  are  very  desirous  that  it  shonld  not  be  supposed 
they  would  be  backward  to  render  any  assistance  in  their  power 
to  all  well-considered  efforts  towards  facilitating  the  commercial 
intercourse  of  nations. — We  have  the  honour  to  be.  Sir, 
Your  obedient  Servants, 

Wm.  Wilson  Saundeks,  Chairman. 
John  A,  Rucker,  Bepaty  Chairman. 
J.  A.  W.  Harper,  Sccrcianj. 

^\\{.  Lowndes.  The  following  are  the  names  of  the  represen- 
tatives ; — 


13G  MARITIME   LEGISI.ATION. 

Edward  Crusemaxn,  Esq.,  Chamber  of  Commerce,  Bremen. 

Charles  H.  H.  Fraxck,  LL.D.,  Chamber  of  Commerce,  Hamhurg  ; 
Chamber  of  Commerce,  Lubeck. 

Theodore  T.  ExCxELS,  Esq.,  Belgian  Government ;  Chamber  of  Commerce, 
Antwerp  ;  Board  of  Underwriters,  Antwerp. 

Jules  Delehaye,  Esq.,  Comite  des  Assureurs  Maritimes  de  Paris. 

G.  Kamexsky,  Esq.,  Russiayi  Government. 

Captain  E    T.  Gourlay,  Sunderland  Corporation. 

Dr.  E.  N.  Rahusen,  Netherlands  Trading  Company. 

Dr.  J.  Wertiieim,  Board  of  Underwriters,  Amsterdam,. 

D.  W.  Mackeciinie,  Esq.,  Average  Adjuster,  Glasgow. 

Hexry  J.  Atkinson,  Esq.,  President,  Hull  Chamber  of  Commerce. 

William  Boxar,  Esq.,  General  SliijJowners'  Asscciation,  Loyidon. 

Ed,  van  Peborgh,  Esq.,  Belgian  Government ;  Chamber  of  Commerce, 
Antwerp  ;  Board  of  Underwriters,  Antwerp. 

J.  A.  W.   Harper,  Esq.,  Salvage  Association,  Lloyd's. 

Captain  Halsted,  R.N.,  Lloyd's. 

L.  R.  Baily,  Esq.,  Average  Adjuster  ;  Chamber  of  Commerce,  Liver- 
pool. 

P.  H.  Rathbone,  Esq.,  Chamber  of  Commerce,  Liverpool ;  Cliairman 
<f  the  Underwriters'  Association,  Liverpool. 

R.  LoAVNDES,  Esq.,  Average  Adjuster  ;  Chamber  of  Commerce,  Liver- 
pool. 

J.  W.   Hale,  Esq.,  Acerage  Adjuster,  London. 

R.  M.  Hudson,  Esq.,  Shipoivners'  Society,  Sunderland. 

John  J.  Kayll,  Esq.,  Sunderland  Corporation. 

3.  Russell  Bradford,  Esq.,  Average  Adjuster  ;  Board  of  Trade,  Boston, 
U.S.  ;  Board  <f  Underivriters,  Boston,  U.S. 

Hon.  Judge  Marvin,  Chamber  of  Commerce,  Neto  York  j  Board  of 
Underivriters,  New  York. 

AV.  T.  Jacob,  Sliijiowners'  Association,  lAverpool. 

William  Richards,  Esq.,  Average  Adjuster,  London. 

Manlev  Hopkins,  Es(|.,  Average  Adjuster,  London. 

Joseph  Created,  Escj.,  London. 

And  thf'ii  s;ii(l  :  If  is  to  a  certain  extent  satisfactory  to  find  tliat, 
■vvitli  n-f/ard  U)  Lloyds,  there  lias  been  some  misconception,  upon 
flie  removal  of  wliicli  \\v.  iii;iy  r;iii'Iy  iiiit  icipat(>,  from  the  tone  of 
1  Ih-ir  letter  j_''eiii -nil ly,  fhal ,  at  all  e\ciils,  no  opposil  ion  will  Ix^  made 
to  onr  intended  iJill,  niid  we  may  perhaps  still  hope  lor  tlieir  con- 
tinued assistance,  i  say  they  lijivo  aefc^l  niidei-  a  misconception, 
for  what  is  now  proposed  is  not  simply,  as  they  imasrine,  to  frame 
!i  l)ill  to  he  passed  throu;_di  the  KiiLdi>Ii  Le^^islat  iii-e.  hiit  to  lay  the 
hasisol'aii   I  iil  > -nial  lonal  Code,      'j'his  has  been  intciidrd  and  under- 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.  L'57 

stood  all  throuo-li.     it  is  a  movement  not  for  England  only,  but  for 
all  parts  of  Europe  and  America. 

The  Chairman.  We  had  better  now  pass  to  voting  upon  the 
clauses  or  st-ctions  of  the  draft  Bill,  or  to  any  discussion  that  may 
arise  upon  them. 

Mh.  Hastings  (General  Secretary).  With  regard  to  the  letters 
read,  I  think  that,  coming  from  bodies  of  such  importance,  I  can 
hardly,  as  representative  of  the  Council  here,  let  them  pass  without 
saying  that  some  authoritative  reply  should  be  given  to  those 
letters.  If  the  statements  are  correct,  which  I  hear  they  are  not, 
then  the  committee  would  conceive  that  their  object  has  not  been 
carried  out,  because  the  resolution  under  which  we  appointed  the 
committee — the  resolution  which  induced  the  council  to  vote,  more 
than  once,  money  in  aid  of  the  expenses  of  these  proceedings — was 
a  resolution  in  favour  of  establishing  an  international  code  of 
General  Average  for  the  whole  world.  If  the  council  had  conceived 
that  it  was  only  for  English  puq^oses,  they  would  not  have  thought 
it  necessary  to  have  had  this  meeting,  but  the  question  would  have 
been  treated  and  dealt  with  in  our  usual  course  of  business.  There- 
fore I  trust  that  this  section  will  be  able  to  show  to  the  council 
that  their  object  is  not  merely  to  pass  a  Bill  through  the  House  of 
Commons  and  House  of  Lords  for  the  altering  of  the  English  law, 
but  for  the  establishing  of  a  general  international  code  of  General 
Average.  I  have  stated  this  now  in  order  to  avoid  any  future 
objection  that  might  be  taken. 

Mr.  Rathbone.  We  are,  I  believe,  acting  in  strict  accordance 
with  the  resolution  passed  at  the  Glasgow  meeting  of  which  I  was 
secretary.  On  May  22  that  resolution  was  sent  to  the  committee. 
That  resolution  was  submitted  to  Lloyd's  immediately  after  the 
meeting  on  October  10,  1860,  and  I  submit  that  we  have  not  in 
any  way  altered  the  programme  from  what  was  then  proposed. 
Tlie  directions  given  to  the  committee  by  the  Glasgow  Congi-ess 
were  as  follows  :—  Mr.  Rathbone  read  the  resolution  of  the  con- 
gress which  directed  the  '  drawing  up  of  a  Bill,  with  a  view  to  its 
being  enacted  into  a  law  by  the  legislative  authorities  of  the  several 
nations  of  the  world.' 

The  Chairman.  I  ihiuk  that  the  committee^  will  consider  that 


138  MARITIME   LEGISLATION. 

what  lias  been  done  lias  been  merely  to  carry  out  what  was  done  in 
Glasgow,  and  that  the  Bill  has  been  drawn  accordingly,  and  that  it 
is  contemplated  in  this  resolution  that  it  be  recommended  to  the 
authorities  of  all  commercial  nations  to  adopt  one  uniform  code. 
It  seems  to  me,  therefore,  that  the  Committee  of  Lloyd's  have  unfor- 
tunately misunderstood  the  position  we  take ;  and  under  these 
circumstances  it  would  be  better  to  record  the  fact  that  the  present 
meeting  does  not  propose  to  restrict  its  action  to  British  legislation, 
but  to  extend  it  to  all  foreign  countries. 

Mr.  Rathbone.  I  am  here  for  the  Underwriters'  Association  of 
Liverpool,  but  I  cannot  commit  that  Association  to  anything  that 
is  done  here,  but  I  am  merely  to  hear  and  watch  and,  if  necessary, 
explain. 

Mr.  Ma>'LEY  Hopkins  then  read  the  following  statement : — 

The  year  1860  saw  the  commencement  in  England  of  an 
endeavour  which  had,  in  a  practical  view,  considerable  importance. 
It  was  an  attempt  towards  the  unification  of  the  laws,  customs, 
and  practice  of  all  nations  as  they  concern  the  subject  of  General 
Average,  the  final  design  being  to  procure  an  universal  code  for 
the  regulation  of  all  cases  of  General  Average  contribution. 

The  scheme  was,  perhaps,  Utopian,  and  its  promoters  may 
eventually  find  themselves  obliged  to  succumb  to  special  difficulties, 
which  prove  insurmountable.  Nevertheless,  there  can  be  no  doubt 
of  the  general  benefit  which  attends  the  deliberation  of  a  body  of 
men  met  to  consult  upon  the  subject  which  most  interests  them, 
and  upon  which  they  are  best  informed.  The  danger  which 
besets  such  a  convention  is  a  failure  of  practical  result,  and  of  the 
collision  of  many  active  minds  ending  in  dialetic  niceties,  and  a 
war  of  finely  drawn  distinctions,  having  no  great  difference  at 
root. 

The  so-called  International  Congress,  which  assembled  for  the 
fii>t  time  at  Glasgow  in  1800,  consisted  of  29  members.  It  took 
place  under  the  presidency  of  the  venerable  Lord  Brougham,  Lord 
Neaves  being  also  prrsent.  Th(■s(^  21'  ])ei's()ns  are,  I  observi.'  in  the 
proceedings,  termed  delegates  by  those  foreign  writers  who  have 
commented  on  the  subject;  but  that  name  must  be  applied  to 
them  in  a  limited  sense;  and  it  is  certain  that  the  English  members 


INTERNATIONAL   LAW   OF  GENERAL  AVERAGE.         139 

of  the  conference  possessed  no  powers  to  bind  or  even  to  act  for 
others.  Of  the  entire  number,  19  were  from  London  and  the 
principal  ports  of  Great  Britain,  2  from  Antwerp,  2  from  Amster- 
dam, 2  from  Copenhagen,  1  from  Hamburg,  1  from  Bremen,  and 
2  from  tlie  United  States  of  America. 

I  should  here  make  the  personal  explanation,  that  I  was  not 
present  at  this  meeting,  nor  at  the  subsequent  meeting  held  in 
18G2.  Under  an  anxiety  to  economise  the  time  of  the  section,  I 
condense  my  observations  into  the  shortest  compass,  and,  there- 
fore, abruptly  pass  on  to  say  that  there  is  a  consent  among  all 
maritime  nations  as  to  the  intention  of  General  Average,  a  term 
implying  a  sacrifice  made  by  one  individual  in  a  marine  adventure 
for  the  benefit  of  all  concerned,  entailing  a  contribution  by  all  for 
the  restitution  of  that  individual's  sacrifice.  The  unanimity 
extends  only  to  the  barest  definition,  and,  even  expressing  the 
meaning  of  the  term  as  generally  as  I  have  done,  it  is  possible 
that  each  word  may  be  objected  to  in  detail.  A  divergence  com- 
mences immediately,  both  as  to  principles  and  the  practical 
adjustment  of  General  Average.  Each  nation  views  this  branch 
of  distributive  justice  in  its  own  manner;  and  even  among  the 
citizens  of  one  country,  individuals  look  at  it  variously,  through 
their  own  particular  spectacles.  If  the  language  of  General 
Average  is  radically  one,  each  trading  community  may  be  said  to 
have  its  own  dialect.  This  produces  acknowledged  inconveniences. 
Foreign  commerce  consists  of  an  interchange  of  commodities 
between  different  nations,  and  these  nations  have  different  laws 
and  customs.  When  claims  arise  between  those  mutually  carrying 
on  trade,  they  must  be  decided  by  the  lex  loci  of  the  one  terminus 
of  the  adventure  or  of  the  other.  The  result  will  be  satisfactory 
on  one  side,  but  may  interfere  with  the  rights  and  laws  on  the 
other  side.  Commerce  being  essentially  international,  it  required 
au  international  legislation  to  harmonise  discrepancies,  and  to  do 
away  with  these  inconveniences.  The  congi-ess  of  1860  was 
meant  to  be  the  first  step  towards  a  consummation  so  devoutly  to 
be  wished  for. 

But  is  this  possible  ?     Has   any  advance   been  made  in  that 
direction  ?     If  not,  what    are   the  efficient  causes  of  disappoint- 


140  MARITIME   LEGISLATIOX, 

meut  or  delay?  x\nd  if  some  are  discovered,  and  appear  to  be 
insurmountable,  what  is  the  lower  level  of  activity  which  might 
advantageously  be  pursued  by  those  who  anxiously  desire  greater 
unity  in  the  regulation  of  General  Average  ? 

Taking  the  experience  of  the  last  four  years  as  our  guide  in 
answerino-  these  questions,  I  think  we  must  decide  that  an  universal 
code  of  General  Average  is,  at  present,  not  to  be  looked  for — first, 
because  it  is  apparent  that  those  who  agree  in  desiring  an  inter- 
national legislation  are  not  agreed  among  themselves  on  first 
principles  ;  and,  secondly,  because  in  homologating  the  existing 
systems,  every  step  requires  a  change,  or  concession,  from  one 
community  or  the  other ;  and  in  those  countries  where  there  is 
already  a  code  or  other  legislation  on  the  subject,  even  a  mutation 
towards  a  proposed  novelty  will  meet  with  opposition,  because  it 
will  disarrange  the  existing  law.  I  do  not  pretend  to  decide 
absolutely  that  it  is  so,  and  am  far  from  washing  it  to  be  the  case ; 
but  I  have  stated  my  personal  belief.  The  proceedings  of  to-day 
may  show  me  to  be  wrong,  but  I  never  had  faith  in  this  cosmo- 
politan law-making,  and  so  expressed  myself  shortly  in  print  three 
years  ago,  and  showed  that  a  more  useful  field  lay  before  the 
students  and  practitioners  of  this  branch  of  science,  in  harmonising 
discordant  views  and  methods,  in  our  own  country,  by  meetings  at 
stated  intervals  for  the  consideration  of  difficult  and  doubtful 
points,  and,  by  means  of  a  majority  of  opinion,  obtaining  a 
reasonable  and  uniform  practice. 

1  have  carefully  studied  the  various  documents  put  forth  by 
?]nglish  and  foreign  members  of  the  congress,  and  do  not  see, 
Ijeyond  a  general  desire  for  unity,  any  great  promise  of  concession, 
even  if  the  delegates  were  empowered  to  offer  it.  Since  that 
meeting  in  18G0,  Sweden  has  actually  enacted  a  maritime  code; 
and  it  would  be  against  the  known  characteristics  of  the  French 
nation  to  suppose  that  tlicy  would  alter,  on  our  account,  their 
highly  organised  '('ode  de  Gonimerce,'  which  they  so  greatly 
admire  and  pri/.e.  Siippusing,  tJieii,  llml  tlie  iiuiveiiu'iit  fails  at 
preBcnt  in  its  inteni;itli)ii;il  (li.ii-.irler,  the  addptioii  of  another 
effort  is  suggested  for  considerat  imi  at  this  congress,  on  that  lower 
level  I  li;ive  already  mentiojied,  and  wliic-h  the  circular  invites  us 


INTERNATIONAL  LAW  OF  GENERAL  AVERAGE.    Ul 

to  discuss,  viz.  home  legislation  on  General  Average,  The  project 
of  a  Bill,  to  be  submitted  to  the  Houses  of  Parliament,  has  Ijeen 
forwarded  with  a  circular,  by  the  International  General  Average 
Committee,  the  preamble  of  which  recites,  that  whereas  it  is  ex- 
pedient that  there  should  be  uniformity  in  the  law  of  General 
Average  amongst  all  maritime  communities,  and  that,  in  order  to 
promote  such  uniformity,  certain  amendments  should  be  made  in 
the  rules  to  be  observed,  in  the  adjustment  of  claims  for  General 
Average  made  in  any  port  or  place  within  the  United  Kingdom  of 
Great  Britain  and  Ireland,  &c.  The  object  of  the  proposed  Act 
must,  consequently,  be  so  to  legislate  in  our  country,  and  with 
such  coucessions  to  the  spirit  of  foreign  laws  and  customs,  as  to 
bring  our  own  system  into  harmony  with  the  foreign  system,  what- 
ever that  may  be. 

But,  again,  even  if  the  discussions  of  the  section  are  narrowed 
to  these  limits,  I  see  the  same  stumbling-block  in  the  way  of 
progress  towards  home  legislation,  as  unfavourably  effected  in  the 
international  design,  viz.  the  want  of  agreement  amongst  English 
members  of  the  Association  themselves,  not  only  in  practical 
details,  but  as  to  the  very  definition  and  the  first  principles  of 
General  Average. 

Until  this  stumbling-block  is  taken  away,  by  these  differences 
disappearing  or  being  reconciled,  there  can  be  no  unity  of  action, 
even  in  England,  or  any  satisfactory  legislation. 

Let  us,  then,  see,  in  presence  of  the  documents  printed  by  the 
General  Average  Committee,  embodying  the  views  of  English  and 
foreign  members  of  the  Association,  what  these  essential  differ- 
ences are. 

First,  it  has  been  discussed,  whether  the  term  General  Average 
relates  to  the  act  of  sacrifice  or  to  the  subsequent  contribution  of 
all  benefited  parties  to  make  good  that  sacrifice.  I  think  we  may 
easily  dispose  of  this  question  by  saying  that,  in  the  inexact 
language  of  commercial  men,  the  term  is  sometimes  used  in  the 
one  sense  or  the  other,  or  concretely  for  both.  I  do  not  think  the 
question  about  name  need  distress  us.  But,  secondly,  the  great 
principle  is  in  contention,  whether  the  aim  and  end  of  General 
Average  be  the  restoration  to  physical  safety  of  the  imperilled 


142  MARITBIE   LEGISLATION. 

interests— proceeding  no  further  than  their  mere  restoration  to  a 

state  of  safety — or,  whether  its  vocation  is  the  '  common  benefit ' 

of  the  associated  interests,  not  merely  in  rescuing  them  from  im- 

pendino-  destruction,  but  conducing  to  their  arrival  at  that  intended 

terminus  of  the  voyage    where    only  they  will    have,  in  a  true 

sense,  a  value.     In  other  words,  whether  General  Average  means 

that — and  all  that — which,  out  of  danger,  tends  to  bringing  the 

joint  adventure  to  its  proper   termination ;    or,  in  the  words  of 

another   writer,    tends    to    the    '  completion    of    the    contract    of 

afireightment  when  practicable,  and  to  its  termination  when  its 

completion    is     impracticable'    (Baily).       This    is    the    cardinal 

question.     There  are   many    subsidiary    points    discussed    in   the 

published  papers,  but  the  scope  of  my  present  remarks  goes  no 

further    than  the    great    point   of  divergence    of  two    schools  of 

thought — one    of  which,    the    '  physical  safety '   school,    may    be 

called  the  dogmatic  ;  the  other,  the  '  final  benefit '  school,  may  be 

named  the  logical. 

I  have  read,  and  with  becoming  attention,  the  views  of  the 
several  writers  whose  separate  papers  and  j^amphlets  have  been 
collected  into  a  volume.  Had  it  been  necessary,  I  should  have 
been  prepared  to  follow  these  writers  iia  their  conclusions  with 
some  detail ;  but  this  is  not  necessary,  nor  will  our  limited  time 
for  reading  permit  it.  The  copious  and  methodical  observations  of 
Dr.  Franck,  delegate  from  Hamburg,  reached  me  as  I  was  writing. 
Speaking  generally,  I  may  say  that  those  who  would  limit  General 
Average  to  a  mere  restoration  to  physical  safety,  are  few  in  number. 
The  view  is  only  urged  forcibly  by  one  advocate,  and  he  an 
Englishman,  but  his  opinions  are  so  careful  and  sincere  as  to 
be  always  entitled  to  respectful  consideration.  I  speak  of  Mr. 
Lowndes,  oi"  l-iv<r|i<iiil.  I  have  named  the  holding  of  this  view 
'  dogmatic,'  because  il  inxolves  the  addition  of  a  very  arbitrary 
])Ower — that  of  di-fiiiiiig  at  wlint  ])articular  link  of  a  chain  of  con- 
sequences tlie  chain  sli;ill  Ix'  lu-okcn  as  to  joint  responsibility. 
'J'lio  act  which  gives  birth  to  GmiTiil  A\('r;igt'  gcnci'ates  also  a 
train  of  coiisfqueiiccs,  and  wave  follows  wave  by  a  kind  of  nnlunil 
ncccssitv.  IJut  the.se  (/o'7/'/;/(,am'.s  place  their  fingeroii;in  iniiigiiuiry 
point  of  demarcation,  and  pronounce  it   \o  be  the  dividing-line  of 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.  143 

solidarity.  Then  in  a  torrent  of  words,  such  as  '  effects,'  '  conse- 
quences,' '  incidents,'  '  causa  jiroxima^'  and  '  causa  remota ; '  '  causa 
causans,'  and  ^  causa  sine  qua  noji,' '  production  of  effects,'  and 
'  induction  of  consequences ; '  '  common  evil '  distinguished  from 
'  common  danger ' — we  grow  too  giddy  to  reply,  and,  when  the 
cloud  of  dust  passes,  lo !  the  magician  is  gone. 

Nor  must  1  here  omit  to  notice  another  doctrine  strongly  held 
by  one  whose  views  have  considerable  influence — namely,  that  the 
condition  precedent  to  an  act  of  General  Average  is  the  '  moral 
certainty  of  destruction  '  as  its  alternative.  This  sentence  jars 
strangely  with  the  whole  system,  and  for  its  decision  requires  a 
dangerously  arbitrary  treatment. 

The  *  logical '  school — that  which  fearlessly  follows  legitimate 
consequences  wherever  they  lead — is  held  pretty  generally  by  the 
foreign  members ;  in  moderation  by  the  English  writers,  '  (?  Fou- 
trance '  by  the  Spanish  and  Swedish  Codes,  and,  with  some 
reservations,  by  the  French  '  Code  de  Commerce.'  Many  important 
points  of  detail  will  be  examined  and  discussed  to-day ;  but  the 
distinction  which  I  have  dwelt  on  is  the  watershed  of  opinion — 
the  groundwork  of  our  contention.  AVhether  the  efforts  of  this 
meeting  are  directed  towards  the  nnificatiou  of  our  own  and  all 
foreign  laws  and  customs,  or  whether  they  take  the  more  special 
sphere  of  promoting  home  legislation,  ideas  will  polarise  themselves 
in  reference  to  these  cardinal  points. 

Our  particular  attention  is,  indeed,  called  on  the  present  oc- 
casion to  a  project  for  a  law  for  the  regulation  of  General  Average 
by  our  own  Legislature.  I  shall  not,  therefore,  detain  the  meeting 
longer  with  these  preliminary  remarks  ;  but  I  would  earnestly  de- 
mand that,  before  any  draft  for  an  Act  is  placed  in  the  hands  of  a 
]Member  of  l^arliament,  the  hearty  concurrence  of  a  large  majority 
amongst  its  promoters  should  be  secured  for  the  proposed  statute ; 
that  the  danger  should  be  remembered  of  reducing  that  liberty 
which  is  the  life  of  trade,  and  fettering  an  ever-increasing  com- 
merce in  its  ever-multiplying  changes  and  necessities. 

AVe  are  told  that,  amongst  the  Locrians,  any  person  proposing 
a  new  law  stood  forth  in  the  assembly  with  a  cord  round  his  neck, 
and,  if  the  law  was  rejected,  the  innovator  was  instantly  strangled. 


144  MARITIME   LEGISLATION. 

Perhaps  it  is  too  late  in  the  day  to  revive  that  sharp  and  summary 
repression  of  law-making;  and  this  meeting  may,  without  such 
immediately  fatal  personal  consequences,  propose  to  our  law-givers 
a  scheme  for  regulating  General  Average.  If  the  Houses  of 
Parliament  should  think,  in  their  wisdom,  that  the  Association  has 
not  sufficiently  made  out  a  case,  that  enough  unanimity  does  not 
exist  for  what  is  required,  or  that  further  legislation  on  the  subject 
is  not  necessary  at  the  time,  the  rope  may  still  be  used,  although 
it  is  the  projected  law,  and  not  its  proposers,  that  will  be 
strangled. 

Dk.  Fraxck  then  read  the  following  statement : — 
Before  commencing  our  discussion  of  the  draft  of  Bill  proposed 
by  the  honoured  committee  which  hitherto  managed  the  General 
Average  movement,  I  beg  leave  to  report  a  few  facts  to  the  con- 
gress now  assembled,  which  might  pei'haps  prove  of  some  interest. 
As  the  aim  of  our  labours  is  to  remove  the  difficulties  and  the 
inconvenience  arising  from  the  difference  of  the  General  Average  laws 
and  customs  of  the  respective  countries,  it  was  and  remains  neces- 
sary to  secure  the  active  assistance  of  all  countries  with  maritime 
interests,  as  well  that  of  their  commercial  classes  as  that  of  their  Go- 
vernments, most  of  which  have  remained  strangers  to  the  question. 
Being  penetrated  by  the  truth  of  this  observation,  and  very  desirous 
to  promote  the  important  undertaking  as  best  I  could,  I  tried  to  in- 
terest influential  persons,  and  particularly  members  of  Governments, 
in  this  subject.  I  therefore  wrote  on  this  head  to  the  Governments 
of  France,  Austria,  Prussia,  Sweden  and  Norway,  Mecklenburg,  Ol- 
denburg and  Hanover,  and  now  beg  leave  to  lay  briefly  before  the 
honourable  congress  the  poor  results  of  my  strenuous  exertions  for 
our  common  cause.  As  to  Austria,  the  imperial  Government  did 
not  think  it  projx-r  to  bo  represented  here,  because,  by  information 
it  had  from  other  Governments,  it  learned  that  the  Congress  of 
York  was  only  a  meeting  of  private  persons.  Prussia  has  been  ap- 
])lied  to,  not  ordy  from  luiiic,  but  from  several  parts.  ]lowever,  no 
J'russiau  mrinbir  is  present  at  our  congress.  i'^rance,  1  am  very 
hajipy  to  observe,  is,  at  last,  this  time  represented  by  our  most  es- 
teemed colh-ague,  Mr.  Director  Delehaye,  of  J'aris ;  this,  however, 
being  not  my  merit,  but  exclufsively  that  of  our  very  active  member 


INTERNATIONAL   LAW   OF   GENERAL    AVERAGE.         14.-) 

of  the  committee,  Mr.  Rathbone,  of  Liverpool.  When  I  arrived  at 
Paris,  in  order  to  secure  us  the  presence  of  a  French  delegate,  Mr. 
Delehaye  had  just  been  appointed  the  other  day.  As  to  Sweden, 
which  hitherto  took  no  part  in  the  movement,  I  am  glad  to  state  that, 
although  his  I']xcellency  the  Swedish  Minister  of  Justice,  the  Baron 
de  Geer,  informs  us  that  the  Swedish  Government  does  not  think  it 
expedient  to  send  a  delegate  to  York,  yet  his  Excellency  authorises 
me  to  declare  that,  according  to  his  personal  opinion,  the  Swedish 
Government  would,  if  invited  by  the  English  Government,  most 
certainly  send  a  plenipotentiary  to  a  conference  for  settling  finally 
the  contents  and  shape  of  an  universal  General  Average  law.  I  am 
of  the  opinion  that  this  declaration  is  the  more  to  be  valued  if  we 
consider  that  Sweden,  after  the  most  prolonged  labours,  at  last  just 
now  has  finished  her  new  maritime  law,  which  is  to  come  into 
operation  in  the  beginning  of  next  year,  and  yet  Sweden  would  be 
willing  to  adopt  a  new  universal  General  Average  law.  His  Excel- 
lency the  Mecklenburg  Minister  of  Justice,  Dr.  Von  Schroter,  had 
the  kindness  to  write  at  great  length  on  our  undertaking,  which  he 
considers  to  be,  as  for  Mecklenburg,  of  high  importance.  He 
authorises  me  to  declare  that  the  movement,  so  far  as  it  concerns 
his  country,  may  be  sure  of  his  active  support.  The  Oldenburg 
Minister  writes  about  to  the  same  effect.  All,  however,  decline  to 
send  official  representatives  to  a  private  congress ;  but  all  will  be 
ready  to  delegate  plenipotentiaries,  and  to  adopt,  in  the  place  of  their 
own  laws,  an  universal  General  Average  law.  I  beg  leave  to  state 
that  the  same  is  to  be  expected  from  the  free  cities  of  Hamburg 
and  Lubeck,  by  whose  Chambers  of  Commerce  I  have  the  honour  of 
being  delegated  to  this  most  honoured  assembly.  I  beg  to  repeat 
that  not  the  governments  of  these  two  cities  are  the  delegating 
bodies,  but  their  Chambers  of  Commerce.  I,  as  well  as  most,  per- 
haps all  the  other  delegates,  have  no  power  of  binding  my  consti- 
tuents ;  they  reserve  to  themselves  the  full  right  of  considering  the 
result  of  the  congress,  and  then  to  decide  on  any  further  step  which 
possibly  ought  to  be  taken  afterwards.  With  respect  to  the  voting, 
I  beg  leave  to  observe  that  my  instructions  from  Hamburg  compel 
me  sometimes  to  vote  in  my  capacity  of  delegate  for  Hamburg 
against  my  own  convictions.     Lubeck,  however,  having  not  fettered 

L 


146  MAPJTDIE   LEGISLATION. 

me  by  any  instructions,  my  vote  for  Lubeck  will  be  sometimes  at 
variance  with  my  vote  for  Hamburg. 

Further,  I  beg  leave  to  say,  for  safety's  sake,  a  few  words  with 
respect  to  the  circumstance  that  we  now  are  making  the  draft  of  the 
Bill  prepared  by  the  honoured  committee  in  the  first  place  the  basis 
of  our  discussion.  I  should  have  taken  the  liberty  of  opposing  the 
mode  of  procedure  but  for  the  mutual  understanding  which  I  learn 
prevails,  that  as  soon  as  the  draft  Bill  has  been  discussed,  amended, 
and  passed,  our  congress  will  enter  on  the  task  of  framing  an  uni- 
versal code  of  General  Average  law  as  the  second  part  of  our  labours. 
According  to  my  opinion,  it  would  perhaps  have  been  better  to  enter 
immediately  on  the  task  of  framing  the  code  of  General  Average  law, 
as  the  questions  treated  in  the  draft  of  the  Bill  have  been  discussed 
so  very  often,  that  most  likely  the  members  of  our  congress  have 
already  formed  their  ultimate  opinion  on  them,  and  therefore 
another  preliminary  deliberation  might  perhaps  be  superfluous. 
But  as  the  general  opinion  is  in  favour  of  considering  in  the  first 
place  the  provisions  of  the  draft  of  the  Bill  in  question,  and  then  in  the 
second  place  the  code,  I  submit,  of  course,  to  this  mode  of  procedure. 

Lastly,  I  take  the  liberty  to  observe  that  I  should  already  at 
present  put  a  resolution  respecting  the  management  of  the  whole 
General  Average  undertaking,  as,  from  the  reasons  stated  in  my 
pamphlet,  which  is  in  the  hands  of  the  members  of  this  congress, 
I  am  fii-mly  convinced  that  our  congress  ought  to  be  only  a  preli- 
minary one,  and  that  steps  must  be  taken  to  induce  her  Britannic 
Majesty's  Government  to  lend  us  in  general  their  powerful  assist- 
ance, and  in  particular  to  invite  the  other  Governments  to  send 
competent  delegates  to  a  joint  conference  for  agreeing  finally  on 
a  complete,  uniform,  universal  code  of  General  Average  law.  But 
as  I  undcistand  that  it  is  the  general  wish  to  have  this  question, 
settled  after  the  draft  of  Bill  has  been  considered,  I  shall  delay  the 
proposing  of  tlie  resolutions  until  that  time.  However,  as  it  is 
always  of  some  use  and  interest  to  know  as  soon  as  possible,  and 
beforehand,  the  proposals  wliicli  will  be  made,  I  hereby  begto  give 
the  formal  notice,  that  it  is  in\'  iulcnlion  to  put  the  two  followinsr 
resolutions  at  issue  as  soon  as  the  draft  in  (piestion  has  been 
discussed. 


INTERNATIONAL    LAW   OF   GENERAL   AVEKACE.         147 

I  am  ill  till'  painful  situation  of  being  coinpellcd  to  make 
proposals,  wliich  1  know,  beforeliaud,  tliougli  elsewhere  entirely  ap- 
proved of,  here  will  meet  with  but  little  sympathy  and  much  opposi- 
tion. But  I  am  in  duty  bound  to  move  for  the  said  resolutions,  as  I 
am  firmly  convinced  they  would  save  our  common  cause  from  the  peril 
of  defeat  in  which  it  stands,  and  that  they  would  lead  us  to  success. 
More,  perhaps,  will  be  said  when  we  come  to  discuss  this  subject ; 
at  present  the  foretroing  is  only  a  necessary  declaration,  an  inti- 
mation of  my  intentions.  I  was  compelled  to  give  these  explana- 
tions in  order  to  remove  any  doubt  as  to  the  consequences  of  the 
circumstance  that  1  do  no  longer  oppose  the  draft  of  the  Bill  being 
now  made  the  basis  of  the  first  part  of  our  joint  labour. 

In  accordance  with  the  Chairman's  suggestion,  it  was  then  re- 
solved unanimously  :  '  That  the  object  of  this  congress  is  simply 
to  carry  out  the  Glasgow  resolution  passed  on  September  27, 1860  ; 
and,  that  it  is  by  no  means  intended  that  the  Bill  should  be  passed 
only  by  the  English  Legislature,  but  that,  in  the  terms  of  that 
resolution,  it  should,  when  perfected,  be  recommended  to  the  legis- 
lative authorities  of  all  commercial  nations,  to  enact  the  same  into 
a  law.' 

The  Chairman.  We  will  now  proceed  to  consider  the  clauses  of 
the  Bill.  We  are  to  see  to  how  much  of  it  we  can  agree,  and 
therefore  to  concentrate  in  it,  as  much  as  we  can,  our  views  on  the 
subject.  It  would  appear  very  desirable  not  to  waste  our  time  on 
comparatively  unimportant  points,  but  to  apply  ourselves  to  those 
points  which  seem  capable  of  being  passed  without  any  great  amount 
of  opposition  from  one  party  or  the  other. 

The  first  section  of  the  Bill  is  this  :  '  A  jettison  of  timber  or 
deals  carried  on  the  deck  of  a  ship,  in  pursuance  of  a  general 
custom  of  the  trade  in  which  the  ship  is  then  engaged,  shall  be 
made  good  as  General  Average,  in  like  manner  as  if  such  cargo 
had  been  jettisoned  from  below  deck. 

'  No  jettison  of  deck  cargo,  other  than  timber  or  deals  so  carried 
as  aforesaid,  shall  be  made  good  as  General  Average ;  but  if  the 
shipment  on  deck  have  been  made  without  the  consent  or  sanction 
of  the  shipper  or  owner  of  such  cargo,  the  loss  resulting  from  such 
jettison  shall  be  made  good  by  the  owner  or  owners  of  the  ship  ; 

I,  2 


148  JIARITIME   LEGISLATION. 

whereas  if  such  sliipment  Lave  been  made  with  the  consent  or 
sanction  of  such  shipper  or  o^^■ner,  the  loss  of  cargo  shall  fall  upon 
such  shipper  or  owner. 

'  Carcro  which  is  in  a  deck-house,  poop,  or  topgallant  forecastle, 
shall,  for  the  purposes  of  this  Act,  be  treated  as  cargo  laden  on 
deck.' 

It  will  be  better  to  consider  each  paragraph   of  this  section 

separately. 

Dr.  Rahusen  proposed  as  an  amendment  that :  '  No  jettison  of 
deck  goods  shall  be  made  good  as  General  Average.'  Not  only 
timber  but  cotton  and  many  other  kinds  of  goods  were  frequently 
carried  on  deck,  and  if  the  old-established  principle  of  excluding 
deck  loads  from  the  benefit  of  contribution  was  broken  in  upon,  it 
would  be  difficult  to  know  where  to  stop.  There  seemed  no  clear 
distinction  in  principle  between  timber  and  other  cargoes. 

Mr.  Rathbone  seconded  Dr.  Rahusen's  amendment.  He  be- 
lieved many  respectable  shipowners  engaged  in  the  St.  John's 
trade  would  prefer  the  clause  to  exclude  deck  loads  from  General 
Average,  because  they  could  then,  insure  their  freight  on  deck  and 
invariably  recover  from  their  own  underwriters  in  case  of  loss, 
without  going  into  the  difficult  question  as  to  whether  the  loss  ox 
the  cargo  was  caused  by  a  voluntary  act,  or  directly  by  perils  of  the 
sea.  Carrying  cargoes  of  cotton  from  the  Mediterranean  on  the 
decks  of  steamers  had  now  become  a  general  custom.  Lastly,  if 
deck  loads  were  excluded  from  General  Average,  the  assured  would 
have  to  value  them  separately  ;  which  would  enable  underwriters  to 
check,  however  imperfectly,  the  overloading  of  the  cargo  on  deck  ; 
whereas  at  present  the  whole  cargo  was  valued  together,  and  it 
might  appear  the  interests  of  shipowners  to  take  on  board  freight 
which  they  would  lie  perfectly  prepared  to  jettison,  knowing  they 
could  recover  the  loss  in  General  Average. 

Mr.  H.  J.  Atkinson.  I  think  there  have  been  very  few  cases  in 
which  wood  has  been  tlirown  overboard  unnecessarily:  a  consider- 
able portion  of  the  loss  generally  falls  upon  tlic  sliipowner  himself, 
find  in  most  cases  tlierc  is  no  clause  in  his  policy  on  the  ship  to 
reind)urse  him  for  that  portion.  Jt  has  ])een  asked,  why  draw  a 
distinction  between  timber  and  cotton  ?    Timber  is  not  so  damaije- 


1XT1':UNAT10NAL   LAW   OF   GENERAL   AVEILAUE.         li'J 

able  as  cotton  ;  inerchaiits  object  to  have  cotton  carried  on  deck. 
With  timber,  on  the  other  hand,  this  is  the  customary  mode  of 
stowage.  At  a  meeting  of  the  Hull  Shipowners'  Association,  tlit^y 
were  unanimous  in  agreeing  to  this  clause,  and  they  considered 
that  tliis  was  fair  as  between  man  and  man.  I  think  there  is  one 
omission ;  that  is,  after  the  word  '  deals,'  where  it  occui's  in  this 
paragraph,  I  should  add  '  or  any  other  description  of  wood 
goods ; '  timber  or  deals  would  not  carry  everything  in  the  timber 
trade. 

Mi{.  Lowndes.  It  is  a  mere  omission,  and  no  doubt  the  com- 
mittee will  assent  to  that  addition. 

The  Chairman.  It  will  be  necessary  to  carry  that  amendment. 
The  first  amendment  offered  is  in  these  terms  :  '  No  jettison  of 
deck  cargo  other  than  timber  or  deals,  so  carried  as  aforesaid,  shall 
be  made  good  as  General  Average ;  but  if  the  shipment  on  deck 
have  been  made  without  the  consent  or  sanction  of  the  shipper  or 
owner  of  such  cargo,  the  loss  resulting  from  such  jettison  shall  be 
made  good  by  the  owner  or  owners  of  the  ship :  whereas  if  such 
shipment  have  been  made  with  the  consent  or  sanction  of  such 
shipper  or  owner,  the  loss  of  cargo  shall  fall  upon  such  shipper  or 
owner.'  It  would  seem  that  the  latter  part  of  that  clause  would 
hardly  be  necessary  to  legislate  upon. 

Mr.  Hudson.  As  a  shipowner  I  think  that,  unless  you  pay 
double  freight,  you  must  allow  the  carrying  of  a  deck  load.  As  for 
overloading  the  ship,  as  Mr.  Rathbone  said,  you  can  take  the  same 
precaution  as  for  any  other  goods. 

Mr.  Gourley.  As  a  shipowner  I  can  say  there  is  no  danger  in 
carrying  a  moderate  deck  load  of  timber ;  as  for  overloading, 
captains  will  not  knowingly  do  so,  if  only  from  a  consideration  of 
their  own  safety. 

Mr.  Crusemann.  I  quite  concur  in  the  amendment  of  Dr. 
llahusen  :  the  exclusion  of  deck  loads  does  not,  and  ought  not, 
however,  to  apply  to  the  coasting  trade. 

Mr.  Wendt.  Some  vessels  in  the  timber  trade  are  particularly 
built  for  the  purpose  of  carrying  large  deck  loads ;  and  I  know  it 
as  a  fact  that  in  some  ports  of  the  Baltic  vessels  are  constructed 
to  carry  as  much  as  one-fifth  to  one-fourth  of  the  whole  loading 


150  MARITIME   LEGISLATION. 

capacity  on  deck.  Timber  goods,  therefore,  I  think  we  are  all 
justified  in  allowing  to  be  can'ied  on  deck. 

Mr.  Baily.  There  is  a  flaw  in  this  section,  for  with  the  latter 
part  of  the  second  clause  we  have  nothing  to  do.  The  only  ques- 
tion before  us  is,  shall  we,  or  shall  we  not,  allow  this  loss  in 
General  Average  ?  We  shall  therefore  have  to  amend  the  words  of 
this  clause.  Two  points  only  are  to  be  considered  by  us :  first, 
what  would  be  the  effect  on  commerce  generally  of  supporting  the 
practice  of  carrying  deck  loads,  by  allowing  in  General  Average 
jettisons  of  such  deck  loads  ?  and  secondly,  what  is  a  deck  load  ? 

The  Chairman.  I  would  put  these  clauses  separately— the  one 
to  be  dealt  with  at  present  is  the  first :  '  A  jettison  of  timber  or 
deals  carried  on  the  deck  of  a  ship,  in  pursuance  of  a  general 
custom  of  the  trade  in  which  the  ship  is  then  engaged,  shall  be 
made  good  as  General  Average  in  like  manner  as  if  such  cargo  had 
been  jettisoned  from  below  deck.' 

]\Ir.  H.  J.  Atkinson.  I  should  like  to  hear  Mr.  Baily 's  views 
on  that  point. 

Mr.  Baily.  Our  House  of  Commons  came  to  the  conclusion, 
after  an  inqniiy  by  its  Committee,  that  it  was  so  dangerous  to 
carry  a  deck  load  between  September  1  and  May  1  that  they 
would  not  allow  it.  If  the  danger  was  so  great  between  those 
dates  that  the  caiTiage  of  a  deck  load  was  during  that  time  pro- 
hibited, it  must  be  considerable  in  August  and  May,  and,  although 
less  in  July  and  June,  must  eveii  then  liave  existed.  So  long  as 
danger  results  from  carrying  a  deck  load,  the  practice  must  be 
objectionable.  It  is  true  that  this  Act  is  now  rej)ealed,  but  it  was 
ri-jte;ile(l  1)\'  a  side  wiud.  lint  (ill  ils  merits. 

M\{.  II.. ).  AiKi.NSoN.  \\  lial  is  now  the  common  jiractice  in 
cases  of  tiudjer  jettisons  of  di'ck  luads  lietweeii  J^iverpool  and  the 
Baltic,  and  other  places? 

Mk.  P>AII,^■.  (ireat  (litlieiilt  ies  ami  aiioiiialies  exist  as  regards 
the  [jraclice  in  tliis  (•(niiiliy  <>\'  adjust  iiig  jettisons  ol"  deck  loads. 
1'he  owners  of  the  cargo  Ixlow  deck  have  notliing  to  do  with  the 
jettison,  but  the  value  of  their  goods  must  Conn  part  oCllie  couti'i- 
biiling  \aliic.  This  raises  t  lie  (|uestion  who  is  to  pay  the  portion 
falling  on  it  —  t  he  owner  of  i  |ir  ship,  oi'  t  he  owjmt  of  i  h''  gottels  lost  ? 


INTERNATIONAL   LAW   OF   GENERAL   AVEKAGi:.         151 

Mr.  II.  J.  Atkinson.  As  a  matter  of  principle  the  motion  of 
Dr.  Kahusen  is  a  fj^ood  one,  although  not  likely  to  be  fully  adopted, 
but  it  would  be  well  if  the  thing  could  be  done.  A  general  rejec- 
tion of  deck  loads  could  not  be  admitted.  It  is  the  custom  of  our 
country  to  load  certain  cargoes  on  deck. 

JiDGE  Marvin.  Tlie  present  law  and  practice  of  the  United 
States  is,  that  the  loss  of  any  kind  of  deck  cargo  is  not  allowed  as 
General  Average.  The  rule  is  universal  both  as  to  foreign  and 
coasting  voyages.  I  see  in  this  section  that  the  law  is  laid  down 
in  the  same  manner,  but  there  is  an  exception  made  in  allowing 
the  contribution  of  timber  and  deals.  I  had  sup]wsed  it  was 
brought  forward  by  English  gentlemen  with  a  view  to  favour  the 
trade  carried  on  between  Great  Britain  and  her  colonies,  the 
Canadas  and  other  places.  I  suppose  this  was  brought  forward  to 
protect  the  English  trade,  and  I  am  prepared,  as  one  of  the  dele- 
gates of  the  United  States,  to  concede  to  these  gentlemen  that  it 
should  be  so.  JVIy  vote  will,  therefore,  depend  upon  the  fact 
wliether  the  English  gentlemen  desire  an  exception  to  be  made  in 
favour  of  timber  and  deals  ;  but  if  they  do  not,  I  should  vote  that 
there  be  no  contribution  whatever. 

The  Chairman  :  That  would  be  in  conformity  with  the  American 
law. 

Judge  Marvin  :  If  it  should  be  admitted,  it  would  be  on  my  part 
a  concession  to  the  English  idea ;  for  myself  I  would  rather  stand  upon 
the  universal  law,  but  if  the  English  think  that  the  timber  trade 
should  be  protected,  then  I  should  withdraw  my  objection  and  vote  so. 

Mr.  LowNi)t:.s.  The  question  is  not  whether  timber  should  or 
should  not  be  carried  on  deck ;  merchants  themselves  must  decide 
that.  It  is  a  fact  that  a  very  large  majority  of  timber  cargoes  are 
partially  carried  on  deck.  If  this  is  a  custom  of  shipowners  which 
ought  to  be  discouraged,  surely  it  is  for  the  Legislature  of  the 
country  to  take  up  the  matter  on  the  grounds  of  humanity  or 
general  policy,  and  declare  whether  cargoes  shall  be  so  carried  or 
not.  ^Ye  have  nothing  to  do  with  that.  The  real  question  with 
us  is,  which  is  most  for  the  interest  of  commerce  in  general — 
accepting  it  as  a  fact  that  deck  loads  of  timber  are  carried — 
whether,  if  they  are  jettisoned,  the  loss  shall  be  a  General  Average 


152  MAPJTI.ME   LEGISLATION. 

or  shall  not  be  a  General  Average.  It  is  not  a  matter  of  indif- 
ference to  third  parties  whether  such  a  sacrifice  is  made  General 
Average  or  not :  it  affects  the  safety  and  the  lives  of  the  crew  and 
passengers.  It  does  so,  by  encouraging  the  timely  throwing  over- 
board of  such  cargoes  when  it  is  dangerous  to  delay ;  whereas  if 
the  captain  knows  that  the  loss  will  fall  solely  on  the  ship,  he  will 
be  tempted  to  put  off  such  a  sacrifice  to  the  last  moment,  when  it 
may  be  too  late.  We  cannot  prevent  the  carrying  of  deck  loads  ; 
the  only  question  is,  how  is  the  matter  to  be  managed  so  that  the 
least  mischief  may  be  done  ?  This  appears  to  me  the  great  argu- 
ment in  favour  of  the  clause  as  it  stands. 

The  Chairman.  I  will  put  to  the  meeting  for  adoption  first,  Ur. 
Rahusen's  amendment,  taking',  with  his  concurrence,  the  first  j^ro- 
position  alone ;  suppressing  the  remainder,  which  might  invite 
discussion.  I'he  amendment  is,  then,  '  That  no  jettison  of  deck 
cargo  shall  be  made  good  as  General  Averag'e.' 

Dr.  AVerthei.m.  It  would  be  against  the  principle  of  General 
Average  for  such  jettisons  to  be  allowed.  Timber  deck  loads  cause 
great  peril  to  the  rest  of  the  cargo ;  for  in  a  storm  the  timber  goes 
over  on  one  side,  and  hence  it  is  that  the  captain  throws  over  the 
deck  load.  I  do  not  think  that  under  such  circumstances  the  loss 
should  l)e  made  matter  of  General  Average.  Mr.  Crusemann 
would  exclude  the  coasting  trade  ;  1  do  not  object  to  that. 

The  amendment  was  put. 

For  the  amendment         .....       8 
Against  it       .  .  .  .  .  .  .12 

y\\{.  \.\s  ]'i;i;()K(iH  :  1  beg  to  state  that  my  vote  against  Dr. 
Ilahusen'.s  motion  is  not  on  the  ground  of"  principle,  but  only  on 
that  of  convenience;  as  considering  it  imi)ossible  to  have  adopted 
in  every  country  a  universal  rule  abolishing  the  authorisation  of 
loading  timber  on  deck  in  Noyages  where  it  has  been  from  all 
times  customary  to  do  so.  JJesitles  that,  all  otlier  deck  loads  being 
))rohibited,  this  will  be  really  a  suflieient  iiii|n-()\-euient  for  com- 
mercial and  insurance  coniniiinit  les. 

'I'liK  Chairman:  We  will  now  takr  llie  xoics  iipdii  the  first 
clause  as  it  originally  stood;  still  nmitting  those  last  words,  which 
appear  iinu'^'cessary. 


INTERXATIOXAI.   LAW   OF   GENERAL   AVERAGE.         153 

For  the  clause         .          .  .  .  .  .18 

Af^ainst  it       .......       2 

Tilt.'  claiisi'  was  accortlingly  passed. 

The  Chairman.  I  will  now  read  to  the  meeting  the  next 
clause  of  this  first  section  :  '  No  jettison  of  deck  cargo  other  than 
timber  or  deals,  or  other  wood  goods,  so  carried  as  aforesaid,  shall 
be  made  good  as  Gen-ral  Average.'  There  is  an  exception  pro- 
posed by  the  represtmtative  of  Bremen  (Mr.  Crusemann),  as  to 
goods  carried  in  the  coasting  trade  by  permission  of  the  law  of  the 
country  to  which  the  vessel  belono-s.  The  words  followina:  in  the 
original  draft  Bill  are,  I  think,  by  general  consent  to  be  omitted. 

Mr.  Gourley.  I  would  move  as  an  amendment  that  there  be 
inserted  the  words,  '  tar,  cotton,  and  tallow,'  because  those  articles 
are  carried  as  commonly  now  as  timber. 

Mr.  Van  Peborgh.  I  strongly  object  to  the  amendments  of 
Mr.  Crusemann,  and  also  to  that  of  Mr.  Gourley.  They  are  con- 
trary to  all  my  experience  of  the  rules  of  other  countries.  You 
would  have  to  define  what  is  a  '  coasting  voyage,'  and  this  in  a 
different  way  for  different  countries  according  as  their  laws  or 
customs  on  this  subject  may  differ.     It  would  be  impracticable. 

Mr.  Fisher  pointed  out  that  the  voyage  from  New  York  to 
California  was  only  a  coasting  voyage.  He  wished  to  know  how  it 
was  proposed  to  deal  with  cattle  on  deck. 

Judge  Marvin.  I  would,  as  I  said  before,  limit  the  allowance 
of  deck-load  jettisons  as  much  as  possible,  the  thing  being,  in  my 
judgment,  contrary  to  principle.  We  have  conceded  timber  and 
deals  ;  let  us  go  no  farther. 

Mr.  Rathbone.  We  are  considered  as  going  too  far  in  this 
Bill  as  it  is ;  do  not  let  us  go  on  to  introduce  other  things  into  it, 
that  every  code  on  earth  includes. 

Afler  some  further  conversation,  Mr.  Gourley 's  amendment  was 
put  and  lost  by  a  large  show  of  hands. 

The  Chairman.  The  next  amendment  is  as  to  '  cattle '  in 
addition. 

Amendment  put  and  lost  by  a  large  majority. 
The  Chairman.  The  next  amendment  is  that  wliich  has  relation 
to  the  coasting  trade,  •  with  the  exception  oi'  goods  so  laden  iu  the 


154  MARITIME   LEGISLATION. 

coasting  trade  by  the  permission  of  the   laws   of  the  country   to 
whiieh  it  belongs.' 

Amendment  put  and  lost  by  a  large  majority. 

The  Chairmax.    I  will  now  put  the  original  clause. 
For  the  clause          .  .  .  .  .  .15 

Against  it       .......       4 

Clause  carried  accordingly. 

The  Chairman.  The  next  question  is  as  to  the  last  words  of 
the  section,  viz.  :  '  Cargo  Avhich  is  in  a  deck-house,  poop,  or  top- 
gallant forecastle,  shall  for  the  pur2)oses  of  this  Act  be  treated  as 
cargo  laden  on  deck.' 

Mr.  Jacob,  as  a  delegate  from  the  Shipowners'  Association 
at  Liverpool,  was  instructed  by  that  body  to  move  as  an  amend- 
ment the  entire  omission  of  this  clause.  The  shipowners  were 
very  much  dissatisfied  with  the  proposed  exclusion  of  cargoes  in 
the  poop  from  the  benefit  of  a  General  Average.  They  thought 
the  proposal  must  have  been  made  without  sufficient  consideration 
of  the  magnitude  of  the  interests  involved.  The  quantity  of  cargo 
carried  in  the  poops  of  ships  was  very  great,  and  its  value  was 
even  greater  in  proportion,  since  a  great  deal  of  silk  and  other 
light  and  valuable  produce  was  carried  in  that  manner.  It  would 
never  do  to  exclude  such  cargoes.  His  instructions  were  to  move 
for  the  entire  omission  of  the  clause.  At  the  same  time,  speaking 
fur  himself,  if  the  feeling  of  the  meeting  were  (as  he  had  been  led 
to  suppose  it  was)  o[)posed  to  this  view,  he  should  be  prepared  to 
support  the  amendment  which  he  understood  Mr.  Baily  was  about 
to  projKj.se,  as  he  thought  that  would  answer  the  purpose.  He 
ex))n'ss('d  regret  at  the  course  taken  by  Lloyd's  committees  and  in 
London,  because  he  was  satistied  from  practical  experience,  that  some 
measure  tfiiding  (<»  a  nuKiMil  of  the  differences  among  different 
eounlries  was  very  inucli  wiinted,  and  might  really  be  carried  out. 

Mr.  Ill  DSo.N  seconded  t  lie  amendment  of  Mr.  Jacob.  He  thought 
it  would  l)e  very  unjust  to  treat-  poop  cargo  as  cargo  upon  deck. 

Mh.  IjAILV.  ]  beg  le.,\c  lo  iiioN'e  lliis  anieiuhneiit  :  'Every 
s  In  let  1 1 II'  not  Imill  in  with  t  lir  IVaiiu'  of  t  lie  vessel  shall  be  considered 
to  be  a  part  oCtlir  deck  of  the  N'essel."  The  poop  is  always  built 
in  with  I  111'  IVanii'  (jf  the  vessel,  and  is  recognised  Lo  be  lit  to  receive 
.'-.uch  goods  even  as  silk. 


r 


INTERNATIONAL  LAW  OF  GENERAL  AVERAGE.    155 

Judge  Marvin  seconded  Mr.  Baily's  amendment. 

Captain  CrOUHLKY  thought  that  the  expression  '  built  in  the 
frame  '  was  rather  vague,  and  might  give  rise  to  dispute.  Would 
it  not  be  better  to  substitute,  '  not  includi'd  in  the  register  tonnage  '  ? 

Mr.  Jacob.  That  would  not  do  ;  for,  under  the  Mercantile 
IManne  Act,  tlaey  measure  in  with  the  tonnage  hurricane-houses, 
and  many  kinds  of  deck-houses  which  I  should  be  very  sorry  to 
carry  cargo  in. 

Mr.  Gourley  thouglit  Mr.  Baily's  amendment  preferable  to 
the  entire  omission  of  the  clause.  It  really  was  desirable  to  define 
what  was  meant  by  the  term  '  deck,'  since  vessels  are  often  built 
with  three  or  four  decks.  Take  the  register  tonnage,  or  some 
other  rule  ;  but  at  least  have  a  rule.  This  was  not  an  underwriter's 
question,  but  should  be  dealt  with,  as  between  shipowner  and 
merchant,  on  general  principles  of  justice. 

Dr,  AVertheim  wished  to  know  what  would  be  the  effect  of  Mr. 
Baily's  amendment.  How^  would  it  bear  on  the  case  of  houses  built 
on  to  the  beams? 

Mr,  Baily.  I  adopted  the  word  '  frame '  because  I  have  been 
told  by  shipowners  that  it  includes  the  ribs  only,  and  not  the  beams. 
Houses  of  all  kinds  are  objectionable  for  cargo.  In  a  case  which 
came  before  me,  one  of  the  regular  American  packets  had  a  house 
for  the  crew,  and  it  is  reasonable  to  suppose  that  this  house  was  at 
least  a  fair  specimen,  and  yet  it  was  swept  away,  and  not  one  officer 
was  left  to  the  ship  to  bring  her  home,  but  the  third  mate,  a  l)oy. 
It  may  be  supposed  that  whatever  you  put  the  crew  into  is  a  proper 
place  for  cargo,  but  it  is  not  so. 

Mr,  Hudson.  There  is  a  description  of  houses  called  '  Liverpool 
houses'  which  are  really  part  of  the  ship,  built  in  the  middle  of  the 
ship,  and  the  deck  is  carried  up  to  them.  If  any  person  can  point 
out  how  they  can  be  defined,  I  will  say  nothing  more  on  the  subject. 
The  houses  I  refer  to  are  as  strong  as  the  frame  of  the  sliip.  A 
poop  may  be  washed  away,  but  that  would  only  be  by  extraordinary 
weather,  against  which  the  shipowners  have  to  insure.  Let  the 
words  be  '  permanent  houses.'  They  must  be  sufficient  to  cany 
cargo,  if  sufficient  to  carry  the  crew. 

Dr.    Franck.  It   would    be  better   to   leave   this   clause   out 


156  MARITIME    LEGISLATION. 

altogether.  We  rarely  put  into  the  deck-house  anything  but  the 
crew.  The  crew  will  look  to  the  safety  of  it  themselves.  Seamen 
have  objected  to  berths,  and  would  not  ship  in  consequence  of  the 
accommodation  not  being  what  it  ought  to  be.  I  therefore  think 
it  would  be  better  that  the  clause  be  expunged, 

;Mr.  Jacob  withdrew  his  amendment,  and  the  votes  were  then 
taken  on  Mr.  Baily's  amendment. 

For  the  amendment         .  .  .  .  .14 

Against  it      .......        7 

Amendment  carried  accordingly. 

The  Chairman.  The  next  section,  the  second,  concerns  the 
damage  of  goods  at  the  time  of  the  jettison  :  '  Damage  done  to 
•goods  or  merchandise  by  water  which  unavoidably  goes  down  a 
ship's  hatches  when  opened  for  the  purpose  of  making  a  jettison, 
shall  be  made  good  as  General  Average  in  case  the  loss  by  jettison 
is  so  made  good.'  We  had  better  take  this  first  clause  only  at 
present. 

After  some  discussion  as  to  the  mode  of  wording  the  section, 
and  a  slight  modification  of  it,  Mr.  Baily  moved  as  an  amendment 
that  the  word  '  not '  be  inserted  after  '  shall.'  He  objected  on 
practical  grounds  solely.  It  was  a  curious  fact  that  claims  of  this 
nature  were  scarcely  ever  found  to  be  made  except  in  the  case  of 
such  cargoes  as  were  insured  '  free  of  particular  average.'  The 
rule  as  proposed  opened  a  door  for  frauds  and  disputes.  There 
would  constantly  be  put  forward  statements  which  it  would  be 
difficult  to  believe,  Init  inqiossible  to  disprove. 

Mi;.  I'ltADFoiU)  (lid  iiot  think  the  difficulty  of  proving  the 
extent  of  tlu"  damage  was  a  sufiicit'ut  reason  for  excluding  a  loss 
which  was  confessedly  admissible  in  princi])le.  In  many  things 
besides  this,  it  was  dillieiilf  fer  llie  adjuster  to  make  uj)  his  mind 
as  to  \slieii,  wliei'r.  iiiid  linw  damjige  had  occurred  ;  but  he  had  to 
find  that  out  as  well  as  lir  could.  This  was  not  a.  more  difficult 
case  than  others.  The  chiini  li;id  in  each  case  to  be  su])ported  by 
lu-oof;  if  there  were  lu)  ])roof,  it  must  be  rejected:  that  was  no 
reason  for  rejecting  it  in  cases  wlnre  there  was  pi'ooC. 

Mli.  JiAILV.  ^'ou  nnist  rrc(i||cct  that.,  when  water  goes  down 
the  hatches,  the   gouds  which  it   dauuiges  are  very  often  thrown 


INTERNATIONAL  LAW  OF  GENERAL  AVERAGE.    157 

overboard,  and  wlicn  they  arc  thrown  overboard  tho  rejection  of 
such  damage  does  not  work  any  injustic(\     When  they  are  not 
thrown  overboard,  the  water  finds   its  way  to  the   bottom  of  the 
ship,  and  it  then  becomes  impossible  to  distinguish  between  tlie 
damage  done  by  the  water  admitted  in  this  way  and  the  damage 
done  by  water  ndinitted  in  otlier  ways. 
Mr.  Baily's  amendment  was  then  put. 

For  the  amendment         .....        1 

Against  it      .         .         .         .         .         .         .20 

The  clause  was  then  put  and  carrit  d. 

The  Chairman'.  The  next  clause  of  this  section  is :  '  Damage 
done  by  breakage  and  chafing  or  otherwise  from  derangement  of 
stowage  consequent  upon  a  jettison  shall    not  be  made  good  as 
General  Average,  but  shall  fall  upon  the  owners  of  the  goods  so 
damaged  or  their  underwriters.' 

Mr.  Atkinson  moved  that  the  Avord   '  not '   be  omitted.      It 
seemed  to  him  only  reasonable  to  treat  this  loss,  which  was  clearly 
a  consequence  of  the   jettison,  in  the  same  way  as  the  jettison 
itself. 

Dr.  Wertheim  seconded  that  amendment. 
The  amendment  was  put. 

For  the  amendment         .  .  .  .  .16 

Against  it       .......       6 

The  amendment  was  therefore  carried. 

On  the  Right  Honourable  Chairman's  vacating  the  chair,  Mr. 
Wendt  was  called  thereto. 

The  Chairman.  The  next  section  is  No.  3  :  '  Damage  inten- 
tionally done  to  a  ship  or  cargo  for  the  purpose  of  extinguishing 
a  fire  on  board  ship,  and  damage  done  by  water  poured  in  or 
admitted  through  scuttle-holes  or  otherwise  for  the  said  purpose, 
shall  be  made  good  as  General  Average.' 

After  some  discussion  as  to  the  language  of  this  section,  it  was 
agreed  that  it  should  stand  as  follows  :  '  Damage  done  to  a  ship 
and  cargo  by  water  or  otherwise  in  extinguishing  a  fire  on  board 
the  ship  shall  be  made  good  as  General  Average.' 

Dr.  Rahusen  proposed  that  the  words  '  and  freight '  should  be 
added,  but  withdrew  his  amendment  on  the  assurance  that  a  clause 


158  MArJTIME    LEGISLATION. 

should  be  added  to  the  Bill,  so  as  to  attain  his  object  in  a  more 
general  war. 

The  section  as  amended  was  carried  unanimously. 

The  Chairman  then  put  to  the  meeting  section  No.  4,  viz. : 
'  Damage  done  by  cutting  away  the  wreck  or  remains  of  spars,  or 
other  things,  which  had  previously  been  carried  away  or  perma- 
nently displaced  by  sea  peril,  shall  not  be  made  good  as  General 
Average.' 

A  discussion  arose  as  to  the  propriety  of  omitting  the  word 
'  permanently,'  and  it  was  eventually  agreed  to  admit  the  words 
'  or  permanently  displaced.' 

M.  Delehaye  did  not  approve  of  this  clause.  He  thought,  if 
wreck  was  cast  away  for  common  good,  the  value  of  that  wreck, 
whatever  it  might  be,  ought  to  be  replaced  by  general  contribution. 
Such  was  at  present  the  law  of  most  maritime  countries. 

The  clause  as  amended  was  carried  by  a  large  majority,  three 
votes  only  being  given  against  it. 

Adjourned  till  to-morrow  at  10  o'clock. 


Septeviler  27,  ISGi. — Sir  Fitzroy  Kelly  in  the  chair. 

Before  the  chair  was  taken,  ^Mr.  Wendt  read  a  letter  from  the 
Portuguese  consul,  which  stated  that  his  (iovernment  had  deputed 
him  to  attend  the  congress,  and  that,  though  prevented  by  illness 
from  doing  so,  he  wished  to  be  supplied  with  some  printed  or 
other  record  of  the  proceedings,  for  transmission  to  his  Govern- 
ment. Much  satisfaction  was  expressed  at  the  action  of  the 
Portuguese  Government. 

TliK  Secretary  read  tin-  .Minutes  of  proceedings  of  the  26th 
instant. 

'J'liK  Chairman  )»ut  to  the  inccting  tlic  fifili  section,  viz,  :  'If  a 
ship  is  intentionally  run  asliore,  in  oider  to  avoid  capture  or 
foundering,  and  is  afterwards  got  off  and  rejiaired,  all  damage 
caused  either  to  the  ship  or  cargo  on  board  by  such  running 
ashore  shnll  lie  made  good  as  General  Average.  If  a  ship  has 
been   intent  ionallv  run  ashore  as  aforesaid,  but  is  not  afterwards 


INTERNATIONAL  LAW  OF  GENERAL   AVERAGE.         159 

got  off  the  shore,  or  being  got  off  is  found  irreparably  damaged, 
or  so  damaged  as  not  to  be  worth  repairing,  no  compensation  in 
the  way  of  General  Average  shall  be  made  for  the  damage  caused 
by  such  running  ashore.' 

Mr,  Manley  Hopkins  considered  the  principle  of  allowing  in 
General  Average  the  damage  done  to  a  ship  by  intentional  strand- 
ing to  be  perfectly  sound.  The  practical  difficulties  of  carrying 
out  that  principle,  however,  and  the  inconveniences  it  would 
occasion,  were  so  considerable,  that  he  would  prefer  to  exclude  it 
in  all  cases  excepting  that  of  running  ashore  to  prevent  capture. 
He  had  prepared  an  amendment  to  that  effect,  but  would  not  at 
present  bring  it  forward. 

The  Chairman  with  great  fulness  and  perspicuity  explained 
the  system  on  which  the  debate  was  to  be  carried  on.  Amend- 
ments were  first  to  be  taken;  and,  of  these,  those  came  first  which 
dealt  with  the  earliest  portions  of  the  clause  ;  after  all  amendments 
had  been  dealt  with,  the  clause  in  its  amended  form  would  have  to 
be  i^ut  to  the  meeting. 

Some  discussion  ensued  as  to  the  amendments  to  be  proposed, 
after  which. 

Judge  Marvin.  I  move  the  following  amendment :  In  the 
third  and  fourth  lines  of  the  first  paragraph  I  move  to  strike  out 
the  words  '  and  is  afterwards  got  off  and  repaired.'  I  presume  all 
here  understand  that  there  are  two  principles  involved  in  this  sec- 
tion. As  it  stands,  it  seems  to  be  founded  on  the  idea  of  the  new 
German  code,  which  limits  the  right  to  recover  the  damages  sus- 
tained by  voluntary  stranding  to  those  cases  in  which  the  vessel  is 
afterwards  gotten  off  and  continues  her  voyage.  I  propose  to 
allow  such  damage  in  General  Average,  independently  of  the 
circumstance  whether  the  vessel  be  gotten  off  or  not.  The  law  of 
the  United  States  upon  this  point  is  fully  settled.  Perhaps  there 
is  no  question  in  the  whole  range  of  General  Average  law  that  has 
been  so  elaborately,  and  so  learnedly,  and  so  ably  discussed  in  the 
Supreme  Court  of  the  United  States,  at  Washington,  as  this  very 
subject  of  voluntary  stranding.  I  believe  that  all  the  points  that 
could  arise  have  been  uncovered  by  the  discussions  of  that  court, 
which  is  the  authoritative  and  the  court  of  last  resort.     In  a  very 


IGO  ]\JATIIT1ME   LEGISLATION 

able  decision  made  about  ten  years  ago,  the  Supreme  Court  adjudi- 
cated that  where  a  vessel  was  driven  ashore  upon  the  rocks,  and 
was  to  a  very  large  extent  beyond  the  control  of  the  master — where 
she  was  irresistibly  driving  amongst  the  rocks,  and  must,  under 
any  circumstances,  have  gone  ashore  ;  but  the  master  put  up  his 
helm,  trimmed  his  sails,  and  managed  with  considerable  skill,  with 
the  aid  of  his  pilots  and  crew,  to  put  her  ashore  on  a  sandy  beach 
instead  of  on  the  rocks  :  by  doing  this  he  saved  the  cargo  and  lost 
the  vessel,  for  the  vessel  was  not  got  off :  this  was  held  to  be  a 
case  of  General  Average.  I  propose  by  this  amendment  to  place 
the  law  upon  the  same  footing  as  that  of  the  United  States  ;  at 
the  same  time  I  am  prepared  to  assent  to  the  proposition  of  Mr. 
Baily  which  will  be  offered  by-and-by.  I  propose,  therefore,  that 
such  damage  shall  be  allowed  in  General  Average,  whether  the 
vessel  is  gotten  off  or  not. 

Dr.  Eahusen  seconded  the  amendment. 

Dr.  Wertheim  :  Mr.  Marvin's  amendment  would  tend  to  in- 
troduce the  principle  of  the  American  law.  The  Dutch  law  has 
been  so  from  the  first  time  that  we  had  any  maritime  law  in 
Holland :  that  all  damage  done  by  intentional  stranding  should  be 
paid  for.  Under  section  99  of  the  Dutch  code  it  is  enacted  '  that 
all  damage  done  to  a  ship  or  cargo,  in  order  to  escape  capture,  or 
to  avoid  foundering,  shall  be  paid  for  in  General  Average.'  The 
only  question  to  be  asked  is,  whether  it  is  done  intentionally  to 
avoid  peril.  When  we  look  at  the  result  of  the  discussions  at  the 
meeting  held  at  Glasgow,  we  find  that  it  was  proposed  that  damage 
done  to  a  ship  in  voluntary  stranding  should  not  be  General 
Average.  AVhat  was  done  there  ?  It  was  decided  by  a  large 
majority  tliat  as  a  general  rule  in  the  case  of  stranding  it  ought 
not  to  be  the  subject  of  General  Average,  hut  sithject  to  dear  proof 
of  Hixxial  facts.  We  think  it  ought  to  be  asked  for  as  General 
Average:  we  Bhull  therefore  vote  for  the  ]u'inciple  of  the  amend- 
ment })roposed  by  Judge  ^larxiu,  because  it  is  that  adopted  by  the 
maritime  laws  of  Holland. 

The  Chairman:  The  question  tiiat  1  am  now  lo  put  is  this, 
whether  the  words  now  proposed  shall  stand  part  of  the  clause. 
'J'lie  i-eul  fjuestion  is,  whetlid-  llir  ;illo\\;ince  in  (lenei;il  Average  of 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.         K'.l 

damage  clone  by  voluntary  strantling,  is  or  is  not  to  bo  conditional 
on  the  ship's  being  got  off  and  repaired. 

For  the  amendment         .....       8 
Against  it      .......       9 

The  Chairman.  The  amendment  is  rejected  and  these  words 
stand  part  of  the  clause.  Has  any  gentleman  any  amendment  to 
propose  after  the  fourth  line  ? 

Mr.  Lowndes  proposed  that  in  place  of  the  words  '  or  so 
damaged  as  not  to  be  worth  repairing,'  be  substituted,  '  or  so 
damaged  that  the  expense  of  repairing  would  exceed  the  value  of 
the  ship  when  repaired,  and  if  the  ship  shall  not  be  in  fact  repaired.' 
He  proposed  this,  merely  to  remove  that  which  might  be  an 
ambiguity  for  foreigners,  as  in  some  countries  a  ship  is  treated  as 
not  worth  repairing  when  the  cost  of  repairing  would  exceed  three- 
quarters  of  its  value. 

Mr.  Rathbone  seconded  the  amendment. 

Amendment  put. 

For  the  amendment         .....       8 
Against  it      .......       9 

Mr.  Crusemann.  I  move  also  an  amendment  which  will  bringr 
the  section  more  within  the  German  law  on  this  subject.  It  is  the 
obliteration  of  the  words  '  or  so  damaged  as  not  to  be  worth 
repairing.' 

On  the  vote  there  were — 

For  the  amendment         .....       6 
Against  it      .  .  .  .  .  .  .8 

The  Chairman.  As  the  three  partial  amendments  that  have 
been  proposed  have  now  been  disposed  of,  I  will  now  put  the 
general  question.  It  is  one  of  great  importance.  This  clause 
which  is  proposed  by  the  society  to  be  introduced  into  the  law  of 
Great  Britain,  with  the  hope  that  it  may  be  adopted  by  most,  if 
not  by  all,  the  maritime  nations  of  the  world,  is,  that  the  intentional 
running  ashore  of  a  ship  in  order  to  avoid  capture  or  foundering, 
shall,  where  the  ship  is  got  off  and  repaired,  be  made  matter  of 
General  Average.  Nations  and  courts  of  law  have  differed  more 
or  less  upon  this  subject.  It  is  a  subject  worthy  the  consideration 
of  this  meeting.     I  shall  be  very  glad  to  hear  any  discussion  upon 

M 


1G2  MARITIME   LEGISLATION. 

it;  and  will  only  observe  at  the  present  moment,  that  the  dis- 
cussions of  this  meeting  will  no  doubt  have  considerable  weight 
with  the  House  of  Commons  and  the  House  of  Lords  in  this  country 
whenever  such  a  Bill  shall  be  introduced,  I  collect  that  it  is  the 
intention  of  those  who  are  interested  in  this  question  to  endeavour 
to  bring  forward  a  Bill  carrying  into  effect  these  various  provisions, 
and  I  shall  be  very  glad  to  see  that  Bill  brought  into  the  House  of 
Commons,  of  which  I  have  the  lionour  to  be  a  member.  I  may, 
perhaps,  be  called  upon  to  report  as  to  my  knowledge  of  it — to 
say  what  I  may  know  of  the  general  feeling  and  opinion  of  those 
who  have  an  interest  in,  and  have  made  themselves  masters  of, 
the  subject.  I  shall  therefore  listen  with  great  interest  to  the 
discussions  on  this  Bill.  The  question  is  familiar  to  you  all,  and 
whatever  maybe  the  decision  of  this  meeting,  even  if  there  happen 
to  be  differences  of  opinion,  I  shall  take  care  to  report,  with  all  the 
weight  that  belongs  to  it,  the  practical  opinion  of  this  assembly 
whenever  the  case  shall  come  under  the  consideration  of  the  House 
of  Commons.  Any  one  may  now  move,  upon  the  question  being 
put,  that  this  clause  stand  part  of  the  Bill,  or  any  one  may  move  a 
negative,  or  move  a  clause  of  a  totally  opposite  character. 

Mr.  Baily.  I  move  the  following  amendment ;  that  instead  of 
the  first  clause  of  section  five,  the  following  clause  be  substituted : 
'  When  a  ship  is  intentionally  run  on  shore  because  she  is  sinking 
or  driving  on  shore  or  rocks,  no  damage  caused  to  the  ship,  the 
cargo,  or  the  freight,  or  any  or  either  of  them,  by  such  intentional 
running  on  shore,  shall  be  made  good  in  General  Average.'  We 
had  a  very  long  discussion  at  Glasgow  on  this  subject.  It  seemed 
to  be  the  general  feeling  that,  on  principle,  you  could  not  reject  the 
damage  done  by  voluntary  stranding,  but  the  allowance  of  it  was 
open  to  so  many  abuses  that  the  more  it  was  limited  the  better  it 
would  be  for  underwriters,  merchants,  and  shijiowners  generally. 
'J'ho  resolution  I  ])ropose  is  framed  to  meet  these  difficulties.  The 
main  objections  to  allowing  voluntary  stranding  in  General  Average 
are  these  :  When  a  vessel  is  on  the  jxdnl  of  rouinlciMug  she  has  a 
quantity  of  water  in  her  liold  ;  if  run  ashore  under  these  circum- 
stances, it  is  often  alleged  that  tlio  whole  damage,  or  nearly  the 
whole  damage,  done  to  the  cargo  is  owing  to  the  straining  of  the 


I 


INTERNATIONAL   LAW   OF   GENERAL    AVERAGE.         10'. 

sliip  by  rimning  her  ashore.  This  allegation  is  not  the  fact,  but  it 
leads  to  a  great  deal  of  abuse  and  fraud ;  and,  therefore,  we  were 
of  opinion  at  Glasgow,  that  we  had  better  exclude  it  in  the  case  of 
foundering.  When  a  ship  is  run  ashore  to  avoid  the  fire  of  a 
battery,  or  capture,  the  same  reasons  do  not  apply,  and  there  may 
be  nothing  to  justify  the  exclusion  of  that  damage  from  General 
Average.  Those  gentlemen  even  who  are  against  the  allowance  of 
any  damage  done  by  running  a  ship  ashore  may  sanction  the 
amendment  as  a  compromise,  for  there  are  not  many  practical 
objections  to  it ;  so  that  those  who  are  opposed  to  all  allowance 
may  adopt  this  amendment,  and  those  wlio  are  agreed  that  in 
principle  such  damage  ought  to  be  allowed,  but  that  there  are  prac- 
tical objections  to  it,  may  also  pass  it  as  a  check  on  abuses. 

Judge  Marvin.  I  second  that  amendment. 

Mr.  Engels.  As  Mr.  Baily  now  makes  it,  it  is  showing  the 
way  to  the  captain  to  avoid  saying  that  the  ship  was  foundering 
before  he  voluntarily  stranded  her,  and  so  to  get  safe  out  of  it.  We 
have  had  instances  of  fraud — we  all  agree  to  that,  and  it  is  prac- 
tically difficult  to  come  at  the  value  of  the  damage.  I  think  we 
shall  be  showing  to  the  captain  how  he  is  to  act,  and  what  he 
is  to  say,  namely,  that  the  ship  was  not  sinking.  On  the  principle 
we  are  all  agreed  that  voluntary  stranding  should  be  admitted ; 
but  the  amendment  of  Mr.  Baily  will,  I  think,  produce  a  result 
different  from  that  we  all  have  in  view,  and  I  recommend,  in 
preference,  that  we  should  adopt  those  resolutions  on  this  subject 
which  were  agreed  to  in  Glasgow. 

Mr.  Rathbone  thought  the  Glasgow  resolution  decidedly  more 
vague  than  that  proposed  by  Mr.  Baily.  Most  of  the  underwriters 
felt  very  strongly,  and  there  had  been  very  good  reasons  for  their 
having  a  strong  feeling  against  voluntary  stranding — the  reasons 
he  wished  not  to  be  published.  .   .  . 

Judge  Marvin.  I  am  favourable  to  the  adoption  of  Mr.  Baily 's 
amendment ;  not  that  I  like  it  in  principle.  I  prefer  the  bi-oad 
principle  which  I  myself  previously  enunciated.  We  must,  how- 
ever, make  a  compromise  of  principle  for  the  sake  of  policy  :  this 
is  a  departure  from  principle  and  founded  on  expediency ;  it  is  a 
concession  to  the  views  of  the  English  underwriters  and  English 

M  2 


1G4  MARITTAIE   LEGISLATION. 

average-staters.  I  believe  tliey  are  against  the  principle  of  al.ow- 
ing  as  General  Average  any  damage  clone  by  a  voluntary  stranding : 
this  is  a  concession  j^^'o  ianto  to  a  certain  point,  but  not  of  the 
whole  thing.  It  still  retains,  after  all,  the  great  principle  of  the 
General  Average  doctrine  that  runs  through  the  whole  cases,  because 
it  simply  excludes  from  General  Average  contribution  some  instances 
or  cases  of  voluntary  stranding,  and  leaves  all  the  other  cases  that 
may  arise  to  follow  the  general  law  of  being  made  good  in  General 
Average.  When  a  ship  is  intentionally  run  ashore  to  avoid  sink- 
ing or  driving  on  rocks,  then  it  is  not  a  General  Average  case.  It 
fairly  follows  that  all  other  cases  are  General  Average.  You  thereby 
exclude  that  very  class  of  cases  stated  by  Mr.  Rathbone.  If  the 
ship's  state  is  such  that  she  must  go  to  the  bottom,  or  if  she  is 
driving  against  the  rocks  and  the  master  runs  her  on  shore  simply 
on  the  gi'ound  that  she  is  already  sinking,  and  in  that  inevitable 
condition  or  peril,  and  the  master  only  selects  another  place  to  run 
her  ashore  (cases  which  would  not  very  often  arise),  I  should  be 
willing  that  the  thing  should  take  its  course  and  not  let  the  loss 
fall  on  the  General  Average,  leaving  it  to  be  determined  as  to  what 
would  be  the  result  if  the  stranding  had  been  done  to  avoid  capture, 
or  under  other  circumstances  than  those  defined  in  the  clause.  I 
concede  it ;  I  like  that  better  than  the  draft  Bill,  for  I  do  not  at  all 
like  the  section  as  it  stands  in  the  draft. 

Mr.  Wendt.  There  is,  as  experience  has  sufficiently  shown,  so 
much  danger  in  allowing  any  case  of  stranding  as  General  Average, 
that  I  would  certainly  propose  to  exclude  them  from  General 
Average  altogether. 

Mr.  Atkinson.  I  think  that,  under  all  the  circumstances,  the 
best  plan  will  bo  to  adopt  the  amendment  contained  in  the  propo- 
sition of  Mr.  Baily. 

Jldgp:  ]\Iarvix.  I  wish  to  repeat  expressly  that  I  regard  this 
as  a  concession  to  the  undcrwi-itcrs,  l)ecause  I  believe  that  the 
Legislature  of  this  country  will  aflinn  I  he  doctriu(>  of  the  United 
States,  and  lliat  Inld  in  lldll.md  and  on  the  conlincnt  of  Europe, 
and  in  cverytiiing  lliat,  llic  tcxt-wrilri-s  Imvc  said  on  ilie  subject, 
and  will  pass  llieir  law  accordingly. 

Ml!.    DklkiiavE  agreed   with   .Judge  J\!ai\In    in   ajtpi'oving  the 


INTERNATIONAL   LAW   OF  GENERAL   AVERAGE.         105 

principle  of  uuiversally  treating  a  voluntary  stranding  as  a  case  of 
General  Average.  If  tliis  were  objected  to,  however,  be  preferred 
the  resolution  come  to  at  Glasgow,  which  appeared  to  him  as 
explicit  as  it  was  practicable  to  make  one  on  this  subject. 

Mk.  Bkadfokd  could  not  vote  for  the  amendment,  as  he  could 
not  vote  for  anything  which  was  against  principle,  on  grounds  of 
mere  expediency.  He  admitted  there  were  practical  difficulties, 
but  did  not  think  these  should  be  suffered  to  override  a  clear  prin- 
ciple. He  did  not  like  the  clause  as  it  stood  in  the  draft,  for  he 
could  not  see  what  difference  it  made  whether  the  ship  was  after- 
wards got  off,  or  not.  He  should  be  glad,  like  his  friend  Judge 
Marvin,  to  concede  whatever  he  could  to  the  English  underwriters 
in  a  spirit  of  fairness,  but  not  when  it  came  to  a  question  of 
principle.  He  believed  the  English  courts  of  law,  were  the  case 
to  come  before  them,  would  arrive  at  the  same  conclusion  as  the 
American  courts,  and  indeed  those  of  the  whole  commercial  world. 
He  did  not  see  that  the  carrying  out  of  this  principle  was  so  very 
difficult.  He  had  himself  had  within  the  last  seven  months  to 
deal  with  three  claims  for  damage  by  voluntary  strandings,  and 
had  rejected  them  all ;  having  satisfied  himself  in  each  case  that 
the  damage  was  not  done  by  the  stranding,  but  by  previous  sea 
peril. 

Dr.  Wertheim.  How  does  the  principle  stand  in  Mr.  Baily's 
proposition  ? 

The  Chairman.  It  leaves  the  law  undetermined  as  to  all  cases 
except  those  defined  in  the  proposition  itself. 

Dr.  Wertheim.  There  is  an  amendment  to  exclude  only  two 
cases  ;  all  other  cases,  then,  are  to  be  allowed  ? 

The  CHAHiMAN.  It  leaves  the  law  actually  as  it  is,  except  as  to 
the  particular  cases  here  named — that  of  an  intentional  running 
ashore  because  a  vessel  is  sinkino;  or  driving:  ashore  or  on  rocks. 

Dr.  Wertheim.  Then  running  ashore  in  all  other  cases  is 
General  Average,  and  is  not  prejudiced? 

The  Chairman.  Mr.  Baily  may  probably  explain  that. 

Mr.  Engels  thought  it  best,  as  it  was  settled  at  Glasgow,  to 
leave  it  to  the  average-staters,  who  were  a  most  respectable  body 
of  men,  to  determine   what  cases  should  be  treated  as  cases  of 


]66  MARITIME   LEGISLATION. 

voluntaiy  stranding.  By  ^Mr.  Baily's  amendment,  it  was  put  into 
the  mouths  of  captains  what  they  should  say  in  their  protests,  so 
as  not  to  have  their  claims  rejected.  He  thought  there  was  great 
danger  in  pointing  out  one  or  two  particular  cases  for  exclusion. 
He  could  not  but  think  that  the  Glasgow  resolution  had  its 
merits. 

Mk.  Wendt.  If  a  vessel  is  put  ashore  in  such  a  condition  that 
it  cannot  keep  afloat,  it  is,  as  a  matter  of  course,  a  case  of  Particular 
Average,  and  not  of  General  Average. 

Mr.  Hopkins.  I  have  no  hope  that  my  amendment  will  be 
adopted  by  the  meeting.  My  opinion  has  been  before  the  world 
some  vears.  I  think  we  are  making  this  an  underwriters'  question, 
whereas  I  understood  that  we  were  to  take  a  national  view  of  the 
thino-.  I  think  we  ought  not  to  appeal  to  the  committee  and  say 
whether  the  underwriter  is  injured  or  not.  We  are  expected  to 
introduce  general  rules  to  be  hereafter  adopted  by  foreign  countries. 
The  average  stater  takes  no  view  at  all,  he  simply  administers  the 
law.  These  cases  bring  us  a  great  deal  of  work  in  the  way  of 
business.  Mr.  Baily's  amendment  leaves  open  two  results  which 
will  create  quarrels  and  bring  on  as  many  difficulties  as  if  the 
clauses  were  to  stand  ;  therefore,  I  think  that  if  we  are  to  legislate 
at  all  it  should  be  for  a  very  full  measure.  I  only  repeat  that  my 
idea  is,  that  the  only  exception  should  be  a  case  of  threatened 
capture. 

The  Chairman  wished  that  all  present  should  distinctly  under- 
stand the  actual  position  of  the  debate.  The  law  of  England,  as 
it  then  stood,  was,  that  where  an  injury  had  been  bond  fide  done, 
whether  to  ship,  freight,  or  cargo,  by  the  voluntary  act  of  the 
master,  in  order  to  prevent  some  greater  calamity,  then  the  conse- 
quences, whatever  they  inight  be,  would  belong  to  General  Average. 
On  this  princijjle,  the  law,  as  regards  voluntary  strandings,  would 
be  the  same  in  l*]ngland  as  in  Ihc  United  States.  If  it  were  wished 
to  leave  this  state  of  things  untouched,  there  was  no  occasion  to 
pass  a  clause  at  all.  He  understood  tlmt  tlie  amendnu^nt  was 
proposed  in  the  interests  of  the  Muglisli  umlei-w  riters.  'I'hey  were 
;i  hodv  of  })ersons  who  li;nl  suirere(I  (Vom  the  l;i\v  ;is  ;idiiiiiiist(>red, 
not  because  the  law,  if  duly  adniinislered,  would  l)e  prejudicial  to 


INTERNATIONAL  LAW   OF   GENERAL  AVERAGE.         107 

them,  but  because,  unfortunately  (and  lie  did  not  solicit  the  silence 
of  the  press  on  this  subject),  there  was  a  prejudice  of  juries  a(,'ainst 
underwriters,  as  contrasted  with  other  persons,  which  frequently 
led  to  a  verdict  of  injustice.  In  no  part  of  the  Queen's  dominions 
did  that  abuse  prevail  more  than  in  the  town  of  Liverpool.  He 
himself  had  heard  verdicts  pronounced  in  Liverpool,  he  doubted 
not  by  able  and  well-intentioned  juries,  which  went  entirely  to  set 
aside  the  law  and  justice  of  the  case,  simply  on  account  of  their 
prejudice.  Some  of  those  present  appeared  to  tliink,  with  Mr. 
Jiaily,  that  the  underwriters  should  have  some  protection,  yet 
without  entirely  overthrowing  the  principle  of  the  law.  Others,  as 
was  done  at  Cilasgow,  would  exclude  voluntary  strandings  altogether, 
except  under  some  peculiar  and  exceptional  circumstances,  which 
they  did  not  define.  Another  gentleman  would  exclude  it  in  every 
case  except  that  of  a  stranding  to  avoid  capture.  It  was  also  open 
to  them  to  abstain  from  making  any  clause.  Between  these  views 
they  had  to  choose.  The  learned  gentleman  proceeded  to  point  out 
the  proper  course  to  be  taken  in  discussing  the  various  amend- 
ments. 

After  a  short  adjournment,  Mr.  Baily  replied.  In  answer  to 
Judge  Marvin  :  This  clause  does  not  lay  down  as  a  principle  that 
running  a  ship  ashore  is  General  Average  in  all  other  cases  than 
those  mentioned  in  the  amendment,  although  that  may  be  a  fair  in- 
ference from  it.  The  amendment  leaves  it  an  open  question  in  all 
other  cases  than  those  mentioned.  In  answer  to  Mr.  Delehaye,  who 
would  prefer  to  say  that  special  facts  should  make  the  damage 
General  Average  :  We  must  look  at  the  resolution  as  practical  men  ; 
if  we  make  exceptions,  the  case,  whatever  it  may  be,  will  always 
come  within  that  exception.  In  every  case  which  we  can  invent, 
some  one  will  say  that  the  case  comes  under  the  exception.  A 
vague  wording  like  that  of  the  Glasgow  clause  creates  or  increases 
dithculties  which  we  are  trying  to  remove.  In  answer  to  Mr. 
Engels :  When  a  man  is  in  imminent  danger  of  going  to  the  bottom 
of  the  sea,  he  will  not  go  to  the  bottom  if  he  can  avoid  it ;  he  will 
certainly  not  elect  to  go  to  the  bottom  because  he  cannot  get  the 
damage  done  to  his  ship  allowed  in  General  Average.  Circum- 
stances will  force  him  to  run  the  ship  ashore,  and  he  will  not  give 


168  MARITIME  LEGISLATION. 

General  Average  a  tliouglit  Avheu  he  does  it.  With  regard  to 
pointing  out  to  a  captain  that  he  must  avoid  saying  that  he  ran  the 
ship  ashore  to  prevent  her  from  sinking ;  if  he  does  avoid  it,  the 
avoidance  will  not  bring  the  damage  into  General  Average;  he 
must  still  assign  a  plausible  and  good  reason  for  the  act.  When 
he  has  given  his  reasons,  everybody  can  deal  with  the  case  as  he 
thinks  right.  A  man  who  runs  his  ship  ashore  without  any  reason 
will  get  nothing  in  General  Average  ;  he  must  assign  some  justi- 
fiable reason  for  doing  it,  and  he  will  find  it  very  difficult  to  bring 
all  the  actual  circumstances  to  square  with  a  reason  which  is  not  the 
true  one,  and  in  his  efforts  to  do  it  he  may  find  that  he  had  some- 
thing to  pay  to  the  owners  of  the  cargo  instead  of  something  to 
receive  for  doing  it.  I  know  practically  that  there  are  great  abuses, 
and  I  have  endeavoured  to  frame  a  clause  which  will,  I  think,  meet 
all  your  views,  and  not  clash  with  the  views  of  either  those  who 
hold  that  everything  in  such  a  case  is  General  Average,  of  those 
who  hold  that  some  things  are  General  Average  and  some  are  not, 
or  of  those  who  hold  that  nothing  is  General  Average. 

The  amendment  was  then  put. 

For  the  amendment     .  .  .  .  .  13 

Against  it .  .  .  .  .  .  .  .6 

The  amendment  carried  accordingly. 

Thp:  Chairman.  If  any  gentleman,  before  we  proceed  to  the 
remaining  clauses  of  the  Bill,  has  to  propose  that  some  descrip- 
tion of  loss  by  voluntary  stranding  shall  come  within  General 
Average,  now  is  his  time  to  do  so.  Mr.  Baily  does  not  intend 
to  intt-rfere  with  the  princijile  of  law  as  held  in  one  country  or 
another. 

No  furtlicr  iiiiifudiiiciit  having  been  proposed,  the  Chairman 
proceedc(l  to  put  section  six,  \\a.  :  '  Damage  occasioned  to  a  ship 
or  cargo  \)y  carrying  a  ])ress  of  sail  shall  not  be  made  good  as 
General  Average,' 

Mr.  Atkinson  proposed  as  an  atiieiidinent  that  the  clause 
should  be  altered  by  adding  the  words,  'except  in  cases  where  such 
sail  is  carried  to  keep  oil' a  lee  sliori'.' 

Dk.  1''ran('K.  I  second  tliiit.  I  Itclii'Nc  tlml  cNciy  ouv  here 
will  Ijf  pi"<'p;iri-(l  to  \()\r  lor  it.      1  shall  make  no  nniarks. 


INTERNATIONAL   LAW   OF  GENERAL  AVERAGE.         109 

Mk.  Ratiihone.  I  hope  it  will  not  be  carried,  for  I  tliiuk  it 
lays  dowji  most  duiigerous  doctriue. 

Amendment  put. 

For  the  amendment  .         .         .         .         .3 

Against  it.  the  rest. 

Amendment  rejected  accordingly. 

Dr.  Franck.  I  propose  that  the  words  '  unless  it  be  proved  that 
it  was  of  an  extraordinary  kind  and  actually  necessary  to  save  the 
ship  and  cargo  from  a  common  peril.' 

Judge  Marvin.  I  will  second  that,  so  as  to  give  the  oppor- 
tunity of  voting. 

Amendment  put. 

For  the  amendment  .         .  .  .          .1 

Against  it,  the  rest. 

The  clause  in  its  original  form  was  then  put  to  the  meeting, 
and  carried,  there  being  only  two  votes  against  it. 

The  Chairman.  Section  seven  must  now  be  read :  '  When  a 
ship  shall  have  entered  a  port  of  refuge  under  such  circumstances 
that  the  expenses  of  entering  the  port  are  admissible  as  General 
Average,  and  when  she  shall  have  sailed  thence  with  her  original 
cargo  or  a  substantial  part  of  it,  the  corresponding  expenses  of 
leaving  such  port  shall  likewise  be  so  admitted  as  General  Average, 
and,  whenever  the  cost  of  discharging  cargo  at  such  port  is  admis- 
sible as  General  Average,  the  cost  of  re-loading  and  stowing  such 
cargo  on  board  the  said  ship,  together  with  all  storage  charges  on 
such  cargo,  shall  likewise  be  so  admitted.'  It  would  be  more  con- 
venient to  put  this  in  the  form  of  two  questions. 

Mr.  Baily.  I  have  to  move  some  amendments,  for  one  part 
is  left  rather  vague.  The  cargo  left  behind  at  the  i^ort  of  refuge 
should  not  pay  any  part  of  the  General  Average  provided  for  by 
this  section.     Then  I  object  to  the  word  '  substantial.' 

The  CHAHiMAN.  With  reference  to  the  word  'substantial,'  I 
may  simply  observe  that  that  word  '  substantial '  is  only  calculated 
to  raise  questions  where  no  questions  need  be  raised.  The  '  cargo' 
means  a  substantial  part.  The  word  '  substantial '  nuiy  raise  many 
legal  questions. 


170  MARITIME   LEGISLATION. 

Dr.  Rahcsex.  I  will  second  the  motion  that  the  word  '  sub- 
stantial '  shall  be  struck  out.     [Agreed  to.] 

The  Chairman.  Will  you  give  me  the  words  in  writing  that 
you  propose  to  have  added  ? 

Mr.  Baily,  '  As  regards  the  ship,  the  cargo  re-shipped,  and  the 
freight  on  it.' 

Judge  Marvin.  I  second  the  adoption  of  the  amendment. 

Dr.  Rahusen.  Jettisoned  goods  must  then  contribute  to  it. 

!Mr.  Baily.  Yes,  I  think  so,  but  I  do  not  think  it  is  necessary 
to  say  so.     Jettisoned  goods  are  included  in  every  adjustment. 

The  Chairman.  It  is  very  intelligible. 

Dr.  Rahusen.  I  do  not  see  any  difference  between  the  cargo 
re-shipped  and  that  to  be  sold  in  the  port  of  refuge ;  the  one  part 
ought  not  to  be  left  out  of  the  General  Average,  but  it  ought  all 
to  be  treated  on  the  same  footing ;  the  one  should  not  come  into  a 
better  position  than  the  other.  Again,  in  exempting  any  part  of 
the  cargo,  you  make  the  other  part  of  the  cargo  the  sufferer,  as  it 
has  to  pay  a  higher  percentage  vipon  the  General  Average. 

Mr.  Baily.  The  voyage  is  at  an  end  as  to  that  part. 

Dr.  Rahusen.  Cargo  sold  is,  then,  in  a  better  position  than 
that  which  is  re-shipped. 

The  Chairman.  This  is  a  proper  and  judicious  amendment. 
The  effect  of  it  is  to  limit  the  clause  very  much  more  than  as  it 
stood  before.  Mr.  Baily  proposes  to  limit  the  contributions  towards 
the  reloading  and  outward  expenses,  so  as  to  bring  in  as  contribu- 
tories  only  the  ship,  the  cargo  re-shipped,  and  the  freight  on  it ; 
that  is  to  say,  he  would  exclude,  from  contribution  towards  such 
expenses,  the  cargo  which  may  be  sold  at  the  port  of  refuge.  This 
in  at  ])resent  the  question  for  your  consideration. 

\)\i.  \\'i;i;iiii;i.\i  coiisidci-cd  lliat  Mr.  Baily 's  amendment  raised 
a  very  important  question  of  principle.  In  his  opinion,  Mr.  Baily 's 
view  was  o]iposed  to  the  true  principle  of  adjusting.  When  cargo 
is  sold  at  a  port  of  refuge,  on  account  of  its  having  been  damaged, 
the  shijiOwniT  is  ali-cady  a  loser,  through  no  fault  of"  his  ;  because 
he  docH  not — at  any  I'atc,  doi-s  nol  according  to  most  laws — obtain 
his  full  freight.  Mr.  JJaily,  acting  on  th(>  I'lnglish  law,  would 
make  hiin  receive  no  freight  at  all ;  very  luajiy  hiws  gi\-e  him  oidy 


INTERNATIONAL  LAW  OF  GENERAL  AVERAGE.    171 

a  pro  rata  freight.  As  the  shipowner  is  thus  a  loser,  by  the  sale 
of  the  cargo  for  the  sole  benefit  of  the  owner  of  the  cargo,  it  did 
not  seem  reasonable  to  make  him  also  a  loser  by  excepting  the 
cargo  thus  sold  from  paying  its  share  of  the  outward  expenses. 
The  duty  of  the  captain  was  merely  to  carry  the  goods  from  one 
place  to  another.  He  had  nothing  to  do  with  whether  they  were 
damaged,  or  with  what  might  be  the  best  way  of  disposing  of  it. 
He  ought  not,  theu,  to  be  in  this  way  a  loser  by  the  sale  of  it. 

Mr.  Hopkins  thouglit  all  Dr.  Wertheim's  objections  might  be 
answered,  but  that  the  amendment  was  wrong  in  other  respects. 

Mr.  Baily.  I  brought  this  forward  merely  as  a  verbal  altera- 
tion, believing  that  the  principle  was  admitted.  If  goods  are  left 
at  a  port  of  refuge  the  voyage  is  at  an  end  as  regards  them.  The 
goods  sold  on  the  spot  are  no  further  interested  at  all. 

Dr.  Rahusen.  Mr.  Baily 's  amendment,  I  must  say,  is  very 
objectionable  in  principle.  It  leads  directly  to  this  unfairness, 
that  the  remaining  part  of  the  cargo  is  made  to  bear  a  much 
heavier  portion  of  the  outward  charges  from  the  mere  fact  of  the 
sale  of  the  sea-damaged  part.  This  sale  augments  the  General 
Average  very  much  as  to  the  rest,  which  must  lead  to  injustice. 

Dr.  Wektheim.  If  a  part  of  any  cargo  is  sold  at  a  port  of 
refuge,  is  that  cargo  to  be  on  that  account  exempted  from  paying 
its  share  of  the  General  Average  occasioned  by  the  putting  into 
port  ?  If  there  is  any  loss  of  masts,  spars  and  stays,  and  so  on,  is 
the  owner  of  the  cargo  left  at  the  port  of  refuge  to  bear  no  part 
of  that  ? 

Mr.  Baily.  Of  losses  sustained  before  arrival  at  the  port  of 
refuge ;  but  not  after. 

Dr.  Wertheim.  You  are  not  consistent  there,  I  think. 

The  Chairman.  The  question  is  whether,  if  the  expenses  of 
entering  a  port  of  refuge  are  already  by  law  the  subject  of  Genei-al 
Average,  the  expenses  of  leaving  the  port  shall  be  the  subject  of 
General  Average  also,  and  whether,  after  the  expenses  of  entering 
the  port  have  been  incurred,  where  a  part  of  the  cargo  is  left  behind, 
and  then  there  are  after-expenses  in  leaving  the  port  of  refuge, 
that  cargo  is  subject  to  General  Average  as  to  those  expenses ; 
that  is  very  intelligible ;  but  that  does  not  apply  to  your  case.     If 


172  MARITIME   LEGISLATION. 

the  masts,  &c.,  are  cut  away  in  leaving  the  port,  Mr.  Baily  says 
that  any  goods  left  behind  at  that  port  ought  not  to  be  subject  to 
General  Average,  because  the  voyage  is  ended  as  to  them. 

Dk.  Hahcsex.  In  England  and  on  the  Continent  the  practice 
differs. 

Mk.  Baily.  When  a  ship  goes  into  port  a  second  time,  owing 
to  damage  sustained  after  she  left  the  port  of  refuge,  would  you 
say  that  any  part  of  that  second  General  Average  should  be  paid  by 
the  cargo  left  behind  ? 

Dr.  Rahusen.  That  would  not  be  right.  There  is  a  great 
diflference  between  a  case  where  the  whole  cargo  is  to  be  sold  and 
a  case  where  only  a  part  is  to  be  sold.  Where  only  part  is  sold 
the  ship  is  bound  to  proceed  to  her  port  of  destination.  It  is  the 
uniform  practice  on  the  Continent  to  deal  with  it  all  under  the 
same  head,  which  is  quite  contrary  to  Mr.  Baily 's  proposition  :  it 
is  a  new  principle,  and  I  should  not  like  others  to  be  taken  by 
surprise. 

The  Chairman.  I  speak  with  submission  to  you.  I  do  not 
understand  that  in  any  country,  in  Europe  or  in  America,  if 
a  ship  puts  into  a  port  of  refuge  and  discharges  and  then  leaves 
the  port  of  refuge,  and  in  so  doing  incurs  certain  expenses,  that 
any  part  of  the  cargo  left  behind  contributes  to  that  part  of  the 
expenses. 

Mr.  Engels.  The  goods  sold  contribute  but  not  those  lett 
behind. 

.Mr.  IjAILY.  If  any  part  of  the  cargo  is  so  damaged  that  it  is 
necessarily  sold,  it  do^-s  not  in  this  country  pay  any  subsequent 
General  Average. 

Di{.   liAilU.SEX.  Tliat  seems  to  form  a  very  intricate  question. 

Mk.  I!ailv.  I  refer  to  goods  left  behind  because  they  cannot 
be  curi-ii-d  on  owing  to  their  state;  as,  for  instance,  because  they 
are  heated  owing  to  sea-damuge, 

Mr.  Cruse.mann.  I  woukl  propose  to  make  some  alteration  to 
that  effect ;  because,  in  some  cases  when  goods  are  sold,  as,  for 
('Xaiiijde,  when  tiieyai'e  sold  (o  raise  ("luids,  (here  is  jjie  (juestion  uf 
the  making  g(j(xl  its  markel  \alue  at  the  port  ol"  dest  iiialion,  and 
other  matters. 


INTERN ATTONAL   LAW   OF  GENERAL   AVERAGE.         173 

Mr.  Baily.  I  will  put  it  in  any  more  definite  form  that  will 
meet  the  case. 

Mr.  Lowndes.  There  is  a  very  great  principle  involved  in  this 
discussion.  The  real  question  is  this :  do  you  allow  the  outward 
port  charges  because  they  are  the  consequences  of  going  in,  or  for 
some  other  reason  ?  If  yon  allow  them  on  the  former  ground, 
then,  in  whatever  manner  you  charge  the  inward  port  charges,  in 
the  same  manner  you  should  charge  the  outward.  On  this  view 
there  would  be  no  absolute  inconsistency  in  making  the  goods  sold 
at  the  port  of  refuge  contribute  towards  the  outward  port  charges. 
This  is,  in  fact,  the  view  commonly  held  on  the  Continent,  as  appeared 
in  our  discussion  by  pamphlets.  But  others,  who  dissent  from  this 
view,  hold  that  the  outward  charges  should  be  admitted  into  General 
Average  on  a  perfectly  distinct  ground,  viz.  that  they  are  in- 
curred for  the  purpose  of  continuing  the  voyage,  and  are  therefore 
in  themselves — not  looking  back  to  any  previous  act  of  which 
they  may  be  considered  as  the  consequences — incurred  for  the 
common  benefit.  On  this  view,  it  is  clear  that  they  are  only 
incurred  for  the  benefit  of  that  portion  w^liich  leaves  the  port  in 
company  with  the  ship.  The  portion  left  behind  does  not  share 
this  benefit,  and  therefore  should  not  contribute.  The  present  dis- 
cussion will  oblige  us  to  select  between  these  two  views.  My  own 
opinion  is,  for  the  reasons  given  in  the  pamphlets,  that  both  views 
are  erroneous.  The  draft  Bill  was  framed  simply  in  conformity 
with  the  opinion  of  the  majority  of  the  members.  Perhaps  Mr. 
Bradford  will  inform  us  what  is  the  practice  in  America ;  whether 
cargo  sold  on  account  of  sea-damage  contributes  to  outward  port 
charges  or  not. 

The  Chairman.  If  goods  are  sold  merely  because  they  are  of  a 
perishable  nature,  and  it  is  expedient  to  determine  the  voyage,  and 
the  goods  derive  no  subsequent  benefit  from  the  voyage,  it  seems 
clear  that  they  should  not  contribute  towards  the  expenses  out- 
wards. 

Mr.  Baily.  Would  it  meet  Mr.  Crusemann's  objections  to  say, 
'  As  regards  the  ship,  the  property  which  leaves  the  port  of  refuge 
in  her,  and  the  pi'operty  which  is  allowed  in  General  Average  sub- 


174  MATMTIME   LEGISLATION. 

ject  to  events  happening  subsequently  to  tlie  vessel's  leaving  tlie 
port  of  refuge  ? ' 

Dr.  Kahusex.  You  will  agi-ee  that  by  selling  one  part  of  the 
cargo  you  augment  the  expenses  of  the  other  part. 

Mr.  Baily.  The  cargo  that  is  left  at  the  port  of  refuge  has 
nothing  whatever  to  do  with  subsequent  accidents.  Test  it  by  the 
case  of  a  sale  of  the  whole  of  the  cargo. 

Mr.  Bradford.  I  was  asked  to  speak  with  regard  to  the  prac- 
tice of  America.  Our  law  and  practice  is  to  charge  the  expenses, 
so  far  as  they  benefit  all  property,  upon  that  property  so  benefited ; 
but  if  it  becomes  necessary  to  sell  a  portion  of  the  cargo,  if  for  any 
justifiable  reason  a  portion  of  the  cargo  is  separated  from  the  rest, 
whenever  that  occurs  that  cargo  is  not  liable  to  the  General  Aver- 
age charge,  but  becomes  liable  to  a  special  charge  for  anything 
that  is  done  for  that  special  interest.  I  do  not  think  that  I  can 
state  it  any  more  precisely  than  that,  so  long  as  the  interests  are 
bound  together,  so  long  the  charges  are  General  Average.  When 
for  any  justifiable  reason  one  portion  of  the  cargo  becomes  sepa- 
rated from  the  other,  that  portion  is  freed  from  the  General  Aver- 
age, and  becomes  liable  to  the  special  average  cliarges.  Therefore, 
if  a  portion  of  the  cargo  is  left  in  port  for  any  reason,  it  is  not 
liable  to  the  expenses  incurred  by  that  vessel  in  going  out  of  port ; 
it  is  simply  liable  for  the  expenses  that  had  occurred  before  it  was 
separated  from  the  rest  of  the  cargo.  No  portion  of  the  outward 
port  charges  can  be  put  upon  that  portion  of  the  cargo  remaining 
in  port. 

Judge  ^Marx'IN.  The  whole  expression  of  this  section  in  the 
draft  Bill,  to  my  mind,  is  very  far  from  being  desirable.  If  the 
whole  were  to  be  reconstructed,  reconsidered,  rebuilt,  I  think  the 
time  of  the  meeting  would  be  saved. 

^fR.  Hatiironk.  Wc  cannot  h<;pe  that  any  body  of  men  can 
reconstruct  these  sections  at  once. 

The  Chairman.  I  think  that,  as  we  have  to  deal  with  this  Bill 
ill  lli<-  order  in  which  \\i-  find  tlic  cliiiiscs,  it  will  In'  lietter  to  go 
through  them  as  we  find  them  this  ai'tcrnoon,  and  if  Ihe  gentlemen 
who  have  so  much  assisted  us  Ijy  their  presence  will,  between  this 
and  the  morning,  draw  up  any  amended  clauses,  and  will  prepare 


I 


INTERNATIONAL  LAW   OF   GENERAL   AVERAGE.        175 

themselves  for  the  puqiose,  we  can  have  a  fair  and  ample  discus- 
sion on  the  subject  to-morrow. 

Postponement  put  and  lost. 

TiiK  Chairman.  I  will  now  read  Mr.  Baily's  amendment  as 
altered :  '  Except  that  any  portion  of  the  cargo  left  at  such  port 
of  refuge  on  account  of  its  bei.ig  unfit  to  be  carried  forward,  shall 
not  be  called  on  to  contribute  to  such  corresponding  expenses.' 
But  we  must  postpone  that  for  the  moment  and  put  the  remainder 
of  the  clause. 

The  remainder  of  tlie  clause  was  then  can-ied  unanimously. 

The  Chairman.  I  will  now  put  Mr.  Baily's  amendment. 

Amendment  put. 

For  the  amendment         .         .         .         .         .10 
Against  it      .......       5 

Amendment  carried. 

Mr,  Delehaye.  I  propose  the  following  amendment,  that  the 
words,  '  and  consignees'  commission,'  be  added  after  '  all  storage 
charges  on  such  cargo.' 

Mr.  Baily.  Agents'  commissions  are  allowed  as  General 
Average  in  England,  in  most  cases  ;  but  there  may  be  cases  where 
the  commission  ought  not  to  be  admitted  in  General  Average. 

Dr.  Kahusen.  I  propose  an  amendment  that,  to  the  words  '  on 
board  the  said  ship,'  be  added,  '  or  on  board  such  ship  as  may 
have  been  chartered  by  the  captain,  for  his  own  account,  in  case 
the  original  ship  shall  have  been  condemned.' 

Judge  Marvin.  I  second  it, 

Mr.  Baily.  If  you  put  this  charge  to  General  Average,  you 
must  put  the  forwarding  freight  to  General  Average  also.  In  some 
countries  they  do  so,  but  is  it  reasonable  ? 

Mr.  Van  Peborgh,  What  is  to  be  done  as  to  fire  insurance  on 
the  cargo  whilst  in  the  warehouse  ? 

The  CHAiRMiVN,  That  is  a  charge  on  the  cargo. 

Mr.  Van  Peborgh.  It  will  be  j  ust  to  put  it  as  a  General  Average 
charge. 

The  Chairman.  If  it  belong  to  the  cargo  and  ship. 

Mr.  Baily.  Excuse  me ;  it  does  not  follow  that  all  losses  result- 
ing from  accidents  which  follow  a  General  Average  act  are  to  be 


176  MAT^ITIME    LEGISLATION. 

allowed.  A  loss  by  fire  in  a  warehouse  is  not  allowable  in  General 
Average,  although  the  goods  may  be  in  warehouse  by  a  General 
Averae^e  act ;  therefore  the  fire  assurance  should  not  be  allowed  in 
General  Average. 

Amendments  withdrawn. 

The  Chairman.  We  now  come  to  the  eighth  section :  '  When  a 
ship  shall  have  entered  a  port  of  refuge  under  the  circumstances 
defined  in  section  seven,  the  wages  and  cost  of  maintenance  of  the 
master  and  mariners,  from  the  time  of  entering  such  port  until  the 
ship  shall  have  been  made  ready  to  proceed  upon  her  voyage,  shall, 
subject  to  the  provisoes  undernamed,  be  made  good  as  General 
Average.  Provided  that,  if  reasonable  dispatch  be  not  used  in  re- 
pairing or  otherwise  getting  the  vessel  to  sea,  no  allowance  for 
wages  or  maintenance  shall  be  made  in  respect  of  the  time  so  im- 
properly expended.  Provided,  also,  that  no  allowance  shall  be 
made  for  wages  or  maintenance  as  above,  in  case  the  ship  shall  be 
condemned  at  such  port  as  irreparable  or  not  worth  repairing,  or  in 
case  for  any  other  lawful  cause  the  cargo,  or  a  substantial  part  ot 
it,  shall  not  be  reladen  on  board  such  ship  for  the  purpose  of  further 
transport.' 

Mr.  Rathbone.  I  think  that  wages  should  not  be  allowed, 
I  move  the  insertion  of  the  word  '  not,'  making  it  '  shall  not  be 
allowed  as  General  Average.' 

Amendment  not  seconded. 

Amendment  lost. 

The  Chairmax.  Is  there  any  objection  that  clause  eight  should 
stand  ? 

^\ii.  Paii.y.  The  general  feeling  in  this  country  as  to  wages, 
&c.  is  tliiit  tlicy  should  not  be  allowed  at  all  on  any  principle  ;  but 
I  shall  vote  for  tlu*  resolution,  because  shipowners  in  this  country 
feel  the  exclusion  f)f  tluMn  to  be  a  great  gi'ievance,  and  the  exclusion 
f>('  t  hem  is  conti-ary  \()  most  of  the  continental  codes.  I  think,  there- 
fore, we  ouglit  1o  concede  1o  that  extent.  Underwriters  argue 
that,  if  you  allow  the  wages  and  ])rovisions,  you  hold  out  an  induce- 
ment to  the  shipowner  to  renuiin  in  port  unneressai-ily.  l^ut  is  it 
likely  that  any  sliipowner  will  nllow  his  ciiphiin  io  reiiiiiin  in  port 
rierelv  foi"  tlie  s;ike  ofgrtlin^'  Icick  the  w;iges  which    he  sjtends  by 


INTERNATIONAL   LAW   OF    GENERAL   AVERAGE.         177 

remainiii*)[  in  ])ort,  when  by  so  doing  lio  loses  tlie  use  of  his  slii|) 
during  such  unnecessary  delay  ?  The  principle  whicli  excludes 
them  is,  I  think,  this.  Everything  allowed  in  General  Average 
should  be  caused  by  a  General  Average  act.  Now,  the  expenditure 
is  not  caused  in  any  way  by  a  General  Average  act,  but  by  the 
contracts  with  the  crew.  It  is  an  expense  incident  to  the  General 
Average  act,  but  not  caused  by  the  General  Average  act,  and  on 
that  ground  I  exclude  them  on  principle;  but  I  shall  vote  for  the 
proposition  on  the  ground  of  expediency. 

Clause  carried  unanimously. 

The  Chairman.  I  think  there  is  no  substantial  difference  of 
oiainion  on  this  clause.  What  Mr.  Baily  has  now  said  suggests  to 
me  this  consideration.  Whenever  this  Bill  shall  come  before  the 
House  of  Con\mons,  this  clause  will  in  all  probability  be  met  with 
a  very  serious  opposition.  I  would  recommend  to  Mr.  Baily  and 
the  other  gentlemen  that,  when  the  bill  shall  come  before  the 
House  of  Commons,  they  should  append  to  it  such  suggestions  to 
the  member  of  that  House  who  brings  in  the  Bill  as  may  be  thought 
necessary.  That  member  could  hardly  be  expected  to  make  him- 
self master  of  all  the  most  important  considerations  of  this  question 
or  to  understand  it  so  well  as  Mr.  Baily  and  others  here  who  have 
dedicated  their  lives  almost  to  the  subject.  You  should,  therefore, 
prepare  what  the  lawyers  call  a  brief,  or  series  of  arguments,  for 
the  member  who  is  to  introduce  the  Bill  to  the  House.  We  now 
come  to  the  provisoes.  The  first  proviso  is  almost  the  common 
law  at  present ;  therefore  we  may  let  this  proviso  stand. 

The  first  proviso  was  carried  unanimously. 

On  the  second  proviso  being  brought  forward, 

Mr.  Crusemann  proposed,  as  an  amendment,  that  in  place  of 
the  second  proviso  in  the  draft  Bill,  the  following  proviso  should  be 
substituted :  '  Provided  also  that  in  case  the  ship  shall  be  con- 
demned at  such  port  as  irreparable,  or  not  worth  repairing,  no 
allowance  shall  be  made  for  wages  and  maintenance  beyond  the 
date  of  condemnation  ;  and  no  allowance  shall  be  made  in  case,  for 
any  lawful  cause,  the  cargo,  or  a  substantial  part  of  it,  shall  not  be 
reladen  on  board  such  ship  for  the  purpose  of  further  transport.' 

Dr.  Franck  seconded  that  amendment. 


178  MARITIME   LEGISLATION. 

Mr.  Lowndes  was  opposed  to  the  amendment.  It  appeared  to 
him  that,  whatever  might  be  the  case  when  a  ship  went  into  port 
to  repair  damage  and  then  resume  her  voyage,  it  hardly  admitted 
of  doubt  that,  when  she  went  into  port  and  was  there  condemned, 
her  only  object  for  going  in  must  have  been  to  obtain  physical 
safety,  and  that  the  General  Average,  and  consequently  the 
allowance  for  wages  and  provisions,  ought  not  to  extend  beyond 
the  attainment  of  safety.  The  clause  as  it  stood  was  framed  as  a 
species  of  compromise,  and  he  thought  a  stand  should  be  made  on 
that  point. 

Mr.  Bradford.  On  the  subject  of  the  provisoes,  I  agree  with 
Mr,  Crusemann.  I  think  that  wages  and  provisions  should  be 
allowed  until  there  is  a  separation  of  the  interest  in  the  voyage. 
I  do  not  think  it  will  be  right  to  say,  when  you  go  into  port  and 
discharge  cargo,  that  because  you  find  the  ship  damaged  so  much 
that  she  cannot  be  repaired,  therefore  no  wages  or  provisions  shall 
be  allowed.  I  suppose  gentlemen  all  agree  that  if  a  vessel  goes 
into  port  and  the  cargo  is  discharged,  the  discharge  of  that  cargo  is 
a  General  Average  charge  ? 

]\Ih.  Baily.  No. 

The  Chairman.  It  has  not  been  so  considered  in  England ;  it 
might  have  been  elsewhere. 

^Ir.  Bradford.  The  master  has  no  reason  to  suppose  that  the 
voyage  is  to  be  ended.  The  cargo  is  discharged,  and  Avhen  it  is 
taken  out,  it  is  found  tliat  the  vessel  is  so  much  injured  that  she 
cannot  be  repaired,  except  at  a  cost  that  is  unreasonable.  As  to 
the  English  law  that  the  expense  of  going  into  port  is  not  General 
Average,  there  is  the  ex]3ense  of  pilotage  and  tonnage ;  upon  whom 
does  the  expense  fall  ? 

Mr.  Bah. v.  in  ])i-acii<'c  all  the  expenses  of  discharging  the 
cargo  are  put  to  General  Average  ;  and  if  I  am  asked,  Is  that 
right?  I  say,  Cei'tainly  not.  AV^hen  I  became  an  adjuster,  I  found 
the  cu.stoin  was  to  put  tlic  expense  of  discliai'u'ing  in  such  a  ease  to 
General  Average;  and  1  follnw  tlic  custom.  I>iit  1  do  not  tlu'refore 
think  it  right.  It  is  a  charge  wliieli  should  liill  either  on  the 
owners  of  the  cargo  or  on  the  shipowner. 

Mk.  l)l!ArF(>i{D.  1  think  it  o:i;jlit  to  be  (Mneral  Average  on 
]ii  iiicijih'.      I  s;iv  t  hat ,  so  long  as  the  (  oiniiiiinilyoC  intei-esls  exists, 


INTERXATTOXAL  LAW  OF  GENERAL  AVERAGE.    179 

so  long  arc  tlie  ship,  freight,  and  cargo  bound  together  Ijy  the  con- 
tract, and  just  so  long  any  loss  or  any  expense  should  be  General 
Average.  When  it  is  decided  that  the  voyage  cannot  be  completed, 
then  the  General  Average  ceases— so  the  wages  and  provisions 
ought  to  be  considered  iu  General  Average. 

Mr.  Ckusemann"s  amendment  was  then  put : — 

For  the  amendment        .         .  .         .  .10 

Against  it      ...  .  ...       8 

The  amendment  was  therefore  carried. 

The  Ciiaikmax.  Although  very  much  called  for  in  other  de- 
partments, I  will  again  to-mon'ow  take  the  chair  if  you  desire  it. 
Although  the  motion  of  the  learned  judge  Mr.  Mania  has  been 
rejected,  it  will  not  prevent  him  from  proposing  any  amendments 
that  he  and  his  friends  may  wish.  Considering  that  this  Bill,  when 
put  into  a  more  technical  and  legal  form,  with  reference  to  our 
statutes,  will  probably  be  submitted  next  session  to  the  Houses  of 
Parliament,  we  ought  to  be  ready  to  give  the  fullest  consideration 
to  any  amendments  any  gentleman  may  be  disposed  to  make. 

Adjourned  till  to-morrow  at  half-past  ten. 


September  28,  1864. — Mr.  Wendt  vas  called  to  the  chair. 

The  minutes  of  the  last  day's  proceedings  were  read  and  settled. 

Mr.  Lowndes.  This  is  the  proper  time  to  move  any  amend- 
ment to  clause  eight  as  it  now  stands,  modified  by  the  amendment 
which  was  carried  yesterday. 

Mr.  Baily.  The  clause  as  amended  is,  to  allow  wages  up  to 
the  date  of  condemnation.  The  objection  to  this  amendment  is 
as  follows :  In  the  case  of  ships  condemned  at  distant  ports, 
captains  are  afraid  to  act ;  they  hand  the  matter  over  to  their 
owners,  and  often  there  ensues  a  long  discussion  between  the 
owners  and  the  underwriters,  which  involves  great  delay.  Mr. 
Crusemann's  resolution  makes  the  cargo  contribute  to  the  wages 
and  provisions  of  the  crew  during  this  delay — that  is,  during  a 
delay  occasioned  by  a  dispute  between  the  owner  of  the  ship  and 
his  underwriters.  Is  this  ^Ir.  Criisemanu's  intenrion? 
Mr    GRrsEMANX.    Yes. 


130  MARITIME    LEGISf.ATION. 

Mr.  Baily.  I  think  the  allowance  of  wages  should  stop  as 
soon  as  any  dispute  arises,  otherwise  it  may  lead  to  great  abuses. 
The  owner  of  the  cargo  has  a  right  to  say  to  the  captain,  '  You  are 
the  man  dealing  with  me,  I  have  nothing  to  do  with  the  people  in 
a  distant  country.  You  have  the  estimates  before  you,  showing 
what  it  will  cost  to  repair  the  ship,  and  you  ought  to  be  able  to, 
and  must,  tell  me  at  once  whether  you  are  going  to  carry  on  my 
caro-o  or  not.  You  are  not  only  going  to  put  me  to  all  the  incon- 
venience and  loss  of  my  cargo,  but  also  to  make  me  pay  the 
expenses  of  your  crew  during  that  delay.'  This  resolution  not 
only  entails  on  the  owners  of  cargo  the  annoyance  and  loss  of 
having  their  goods  kept  at  a  port  of  refuge,  but  also  calls  upon 
them  to  pay  the  shipowner's  expenses  during  the  delay. 

Judge  Marvix.  This  may  be  carried  out  by  a  little  change  in 
the  phraseology.  Let  it  be  provided  that  the  wages  and  provisions 
of  the  crew  shall  not  be  allowed  in  General  Average  beyond  the 
time  when  the  ship  is  condemned  or  ought  to  be  condemned  upon 
the  existing  practice.     That,  I  think,  takes  in  both  ideas. 

Captaix  Gourley.  I  think  ^NTr.  Crusemann's  clause  had  better 
remain  as  it  is. 

Mr.  Lo"\^■^'DES.  Suppose  the  ship  is  condemned  and  the  cargo 
not  reladen,  if  we  apply  the  first  half  of  Mr.  Crusemann's  clause 
we  should  allow  wages  and  provisions  do\^Ti  to  the  time  of  con- 
demnation ;  if  we  apply  the  last  half  we  shall  not  do  so. 

Mr.  Wendt  vacated  the  chair,  which  was  taken  by  Sir  Fitzroy 
Kelly. 

^Ii{.  IjOWNDES  read  the  amendment  which  had  been  put  by 
Mr.  Crusemann  and  carried. 

The  Chairman.  The  object  is  to  bring  the  Average  down  to 
the  time  the  ship  is  condemned.  May  we  now  consider  the  eighth 
section  with  all  its  amendments  as  complete? 

^fR.  Baily.  I  have  to  move  the  omission  of  the  words,  '  and 
no  allowance  shall  be  made  in  case,'  to  the  end  of  the  paragraph, 
because  Mr.  Crusemann's  clause  is  inconsistent.  If  you  take  the 
first  part  of  fhe  clause  you  gi^■e  flie  compensation  uji  to  the  time  of 
condemnation  ;  if  you  take  the  last  part  you  do  not  give  any. 

'I'liK  C'lrAiKMAN.    The  clause  has  been  adoj)<ed  with  a  qnalifica- 


INTERNATIONAL   LAW   OF  GENERAL   AVERAGE.         181 

tion  whicli  it  is  now  ])roi)osetl  to  omit.  ]Mr.  Baily  proposes  to 
omit  fiTmi  '  jind  no  allowance,'  &c.  to  the  word  '  transport.' 

Mr.  Baily.  I  also  propose  to  add  to  the  middle  of  the  clause, 
after  the  words  '  date  of  condemnation,'  '  or  the  time  when  the 
ship  ought  to  have  been  condemned  on  the  facts  of  the  case.' 

Mr.  Lowndes  seconded  the  amendment. 

Mr.  Gourley.  That  nullifies  J\Ir.  Crusemann's  proposition 
altogether,  and  I  hope  he  will  not  consent  to  it. 

Mr.  Rath  hone.  1  trust  that  that  amendment  may  be  carried. 
The  wages  and  provisions  of  the  crew  might  be  going  on  for  a 
whole  year  perhaps,  during  the  dependence  of  a  question  arising 
with  which  the  owners  of  the  cargo  would  have  nothing  whatever 
to  do.  It  cannot  be  right  to  charge  the  cargo  therewith  in  General 
Average. 

The  amendment  was  put  and  carried. 

;Mr.  Lowndes.  I  have  now  to  move  that  after  the  words  •  beyond 
the  date  of,'  be  inserted  '  discharge  of  the  cargo,'  in  place  of  the 
words  '  condemnation  of  the  ship  or  the  time  when  the  ship  ought 
to  have  been  condemned  on  the  facts  of  the  case.'  I  believe  that 
this  would  be  a  more  thorough  way  of  obtaining  that  which  by  the 
votes,  as  given,  it  appears  that  w^e  all  have  in  view.  I  cannot  see 
any  ground  for  making  the  cargo  contribute  to  General  Average 
for  the  wages  and  provisions  of  the  crew  after  the  time  when  the 
cargo  has  been  discharged :  from  that  point  the  cargo  ceases  to  be 
interested  in  any  way  in  the  detention,  or  in  what  may  take  place 
as  to  the  disposal,  or  in  the  proceeds,  of  the  ship :  the  connection 
between  the  ship  and  cargo  is  at  that  point  terminated.  What  I 
fear  is  that,  if  we  should  frame  a  Bill  w^hich  can  be  attacked  on 
general  principles  on  one  important  point,  we  may  run  the  risk  of 
losing  the  whole  measure.  It  is  easy  to  frame  a  Bill,  but  w^e  must 
have  one  which  will  command  the  approval  of  jurists  and  persons 
acquainted  with  the  subject  in  different  countries. 

Mr.  Rathbone.  I  beg  to  second  that  amendment. 

Mr.  Wendt.  Is  the  whole  or  any  part  of  the  principle  of  the 
clause  involved  in  this  ? 

Mr.  Rathbone.  It  is  a  mere  detail. 

The  Chairman.  It  relates  only  to  the  maintenance  of  the  crew 


182  MARITIME   LEGISLATION. 

in  the  port  of  refuge.  The  question  is  whether  that  is  or  is  not  to 
be  allowed  beyond  the  time  of  the  discharge  of  the  cargo ;  that  is 
to  say,  if  it  is  to  be  made  the  subject  of  General  Average,  whether 
it  shall  cease  from  the  time  of  the  discharge  of  the  cargo. 

Mr.  Crusemanx.  I  think  that  the  wages  and  maintenance 
ought  to  be  paid  up  to  the  same  time  as  the  storage  and  other  ex- 
penses of  the  cargo ;  the  storage  and  other  expenses  of  the  cargo 
will  be  charged  in  General  Average  up  to  the  time  of  the  condemna- 
tion of  the  ship,  and  it  is  therefore  projier  that  the  shipowner 
should  be  placed  in  as  good  a  position  as  the  owner  of  the  cargo. 

The  Chairman.  The  whole  question  is  between  the  discharge  of 
the  cargo  on  the  one  hand,  and  the  condemnation  of  the  ship  on  the 
other. 

Dr.  Rahusen.  The  proposal  of  Mr.  Lowndes  is  very  objection- 
able. By  that  amendment,  from  the  moment  the  cargo  was 
discharged,  until  the  day  of  condemnation,  the  wages  and  main- 
tenance of  the  crew  would  not  fall  upon  General  Average,  but 
upon  the  shipowner,  for  he  could  not  recover  them  from  his 
underwriters  as  Particular  Average.  That  would  be  contrary  to 
all  the  principles  of  law  that  I  ever  heard  of,  and  will  be  thought 
very  unjust.  After  the  date  of  the  condemnation  of  the  ship  you 
may  leave  it  for  the  shipowner  alone  to  pay  all  expenses,  because 
he  then  may  pay  off  the  crew,  but  not  till  then. 

;Mr,  Baily.  If  a  vessel  is  condemned  at  a  port  of  refuge,  I  hold 
that  the  cargo  is  not  liable  for  any  of  this  General  Average. 

The  Chairman.  Will  any  gentleman  point  out  the  difference 
between  the  period  of  condemnation  of  a  ship  and  the  period  of 
the  discharge  of  the  cargo:  that  really  is  the  point,  it  is  a  point 
of  time  only  :  whether  these  wages,  &c.  are  to  be  allowed  down  to 
the  time  of  coiulciiiiial  ion  or  to  the  time  of  discharge  of  tlie  cargo. 
Let  us  then  consider  what  that  time  is,  and  why  the  rule  should 
be  applied  to  the  one  time  rather  than  to  the  other. 

Mr.  JJaiev.  We  are  so  thoroughly  acquainted  willi  llie  dis- 
tinction lli;il  1  will  onl\  s;i\'  a  lew  words  upon  il.  ()iie  of  the  lii'st 
steps  is  to  discharge  the  cargo;  alter  thai,  I  he  ship  is  exaniined 
and  sometimes  is  found  to  be  in  such  a  del'eeli\('  ecjndil ion,  that 
tlie  ca])tain,  if  he  were  the  owner,  \v(jui(l  say,  '  i  will  not  re])air  the 
><hip.'      Not  I)e'ng  the  owner,  he  writes  to  llie  owner  ami  a^ks  liiiii 


IXTEi; NATIONAL   LAW   OF   GENKI!AL    AVERAGE.         1S3 

what:  hv  Is  to  do  ;  t  he  ownor  goes  to  the  underwriters,  and  discus- 
sions ensue  tliat  sometimes  occupy  montlis.  A  considerable  time 
in  consequence  elapses  before  the  captain  receives  his  instructions, 
and  during  the  whole  of  this  time  the  cargo  is  kept  at  the  port 
of  refuge.  Mr.  Crusemann  says  the  General  Average  should  not 
cease  until  the  ship  is  condemned,  but  I  prefer  Mr,  Lowndes's 
amendment. 

Dk.  Wertiieim.  Mr.  Lowndes's  amendment  is  quite  contrary 
to  the  principle  of  law  as  to  General  Average,  which  is  that,  be- 
tween the  ship,  the  cargo,  and  the  freight,  the  confraternity  of 
interest  ceases  when  the  ship  is  condemned :  up  to  that  time 
General  Average  ought  to  rule ;  after  that  time  nothing  ought  to 
be  allowed.  AVhen  a  ship  is  condemned,  all  tlie  expenses  made  by 
and  on  behalf  of  the  connnon  benefit  and  interest  ought  to  be 
paid  for  in  General  Average  by  all  the  parties  interested  in  them. 
Mr.  Baily  and  Mr.  Lowndes  are  of  opinion,  one  one  way  and  one 
another.  The  only  principle  upon  which  to  act  I  say  is  this :  so 
long  as  the  confraternity  exists,  and  no  longer,  all  disbursements 
made  on  behalf  of  the  parties  should  be  allowed.  How  otherwise 
can  we  say  when  it  shall  cease  so  as  to  render  justice  to  both,  and 
who  shall  tell  the  moment  of  the  ceasing  of  the  confraternity  ? 
The  only  definite  point  of  separation  is  the  date  of  condemnation. 
Then  there  is  the  warehouse  rent,  &c.  to  be  considered. 

Mr.  Baily.  I  should  not  put  the  rent  to  General  Average.  I 
repudiate  that  principle  altogether. 

Dr.  AVerthelm.  It  is  said  in  the  seventh  section  that  when,  in 
order  to  repair  the  damage  done  to  the  vessel,  the  cargo  is  dis- 
charged, the  warehouse  rent  should  be  admitted  into  General 
Average;  yet  now  we  are  told  by  Mr.  Baily  that,  if  the  ship 
happens  to  be  not  worth  repairing,  the  cargo,  and  not  the  tieneral 
Average,  ought  to  bear  this  charge.  This  distinction  cannot  be 
founded  on  any  principle  ;  the  question  is  treated  as  a  mere  matter 
of  expediency  on  the  part  of  the  underwriters.  This  should  not 
be.  I  am,  in  this  as  in  all  other  cases,  strongly  opposed  to  the 
replacing  of  principle  by  expediency,  and  as  a  lawyer  especially  so. 
'J'his  expediency  can  be  twisted  any  way. 

^Ir.  Engels.  I  quite  agree  with  Mr.  Baily.  AVhen  does  this 
confraternity  between  ship  and  cargo  cease  ?     That  is  the  whole 


184  MARITIME   LEGISLATION. 

question.  I  agree  with  'Mv.  Baily  thnt,  from  the  moment  that  the 
cargo  is  discharged,  the  allowance  in  General  Average  ought  to 
cease.  You  cannot  certainly  make  the  cargo  pay  the  expenses  of 
the  wages  and  maintenance  of  the  crew  until  a  reply  can  be  got 
from  the  OAvners,  a  proceeding  which  might  extend  over  four  or 
five  months  ;    the  captain  ought  to  know  what  he  is  to  do. 

Mr.  Crusemanx.  That  the  confraternity  ceases  at  the  very 
moment  the  cargo  is  discharged  is  not  the  right  view  of  the  case. 
I  think  it  is  not  so ;  it  may  cease  for  a  time,  but  it  does  not  cease 
ultimately  and  positively  until  the  ship  is  condemned  ;  and  so  long 
as  it  has  not  definitely  ceased  I  should  say  all  expenses  must  be 
borne  by  all  interested.  The  date  of  condemnation  can  be  the 
only  time  when  the  interests  are  separated. 

Dr.  Franck.  I  should  wish  to  move  as  follows :  That  from 
the  words  '  or  in  case '  the  clause  be  altered  thus :  '  but  in  case 
for  any  other  lawful  cause  the  cargo,  or  a  substantial  part  of  it, 
shall  not  be  reladen  on  board  such  ship  for  purpose  of  further 
transport,  no  allowance  shall  be  made  for  wages  or  maintenance  of 
the  crew.'  I  beg  only  to  observe  that,  as  soon  as  the  cargo  is  left 
behind  in  the  port  of  refuge,  from  any  reason,  the  port  of  refuge 
becomes  the  port  of  destination  of  the  different  interests,  i.e.  the 
ship,  the  freight  and  the  cargo,  and  as  in  the  port  of  destination 
the  charges  in  question  are  not  General  Average,  so  they  are  not  in 
the  port  of  refuge  which  has  become  the  port  of  destination.  It 
is  impossible  not  to  see  at  once  that  the  port  of  refuge  does  in  such 
a  case  become  the  ])ort  of  destination. 

Mr.  Crusemann.  Up  to  the  time  of  the  condemnation  nobody 
has  a  riglit  to  dispose  of  the  cargo.  The  shipper  cannot  take  it 
away,  the  captain  is  not  excused  from  keeping  charge  of  it  for  the 
puqjose  of  transit.  The  confraternit}^  of  intei-ests  therefore  does 
not  cease  till  after  tlif  condemnation. 

Mr.  Low.ndes.  W  iili  regard  to  tlie  ai-gunient  of  ^Ir.  Crusemann 
tliere  is  a  case  that  constantly  happens,  to  which  it  would  not 
apply  at  all.  As  soon  as  the  cai'go  lias  been  discharged,  it  is  at 
once  seen  that  the  ship  is  sn  damaged  that  she  cannot  be  re]iaired 
on  the  spot,  or  at  any  ])lace  in  I  lie  neighbourhood,  so  as  to  con\ey 
the  cargo  forward  ;  the  cargo  is  then  at  once  sent  forward  in  other 
vessels;  Ih^n  comes  the  (piestion  whether  or  not   it   will  be  ]iossible 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.         1«5 

by  temporary  repair  (o  l)i-iug  the  ship  to  some  place  where  slie  can 
be  repaired  more  cheaply — to  this  country  or  some  other  port.  I 
assume  that  any  port  at  which  the  ship  could  be  repaired  would  be 
so  distant  that  the  voyage  would  be  completely  at  an  end,  and 
there  would  be  no  obligation  to  go  back  to  fetch  the  cargo.  In 
the  case  whicli  1  have  supposed — a  case  which  has  more  than  once 
actually  occurred  within  my  knowledge — the  question,  whether  the 
cargo  should  ever  be  carried  on  in  the  ship,  or  not,  was  determined 
at  the  very  moment  when  the  carg-o  was  discharw'd.  The  subse- 
quent  fate  of  that  ship  was  a  matter  of  the  most  absolute  indiffer- 
ence to  the  cargo.  Surely  in  such  a  case  as  that  it  would  seem 
unreasonable  to  make  the  cargo  contribute  to  the  expenses  during 
the  time  that  it  had  nothing  to  do  with  the  ship.  It  is  no  doubt 
a  theory  which  can  be  defended,  that  there  is  a  community  of 
interests  continuing  so  long  as  there  is  a  reasonable  prospect  of 
carrying  the  ship  and  cargo  on  together ;  but  no  one  can  say  that 
the  community  should  continue  beyond  that  time.  It  is  simply 
when  they  are  engaged  in  one  common  enterprise  that  the  commu- 
nity exists,  and  when  that  enterprise  ceases  the  community  ceases 
with  it.  Then  conies  the  question,  how  are  we  to  determine  when 
that  moment  has  arrived  ?  In  the  case  which  I  just  put,  there 
was  no  difficulty ;  the  moment  was  determined  as  soon  as  the 
cargo  was  landed.  In  other  cases,  the  state  of  the  ship  and  the 
consequent  impossil)ility  of  repairing  may  not  be  known  until 
a  later  period.  Still  this  impossibility  existed  from  the  first ; 
and,  when  once  it  is  ascertained,  we  should  treat  the  matter  as 
if  it  had  been  known  from  the  first.  All  these  matters  are  treated 
iqion  the  basis  of  the  ultimate  result.  Whenever  it  was  known 
it  was  a  fact  that  the  ship  was  a  total  loss,  or  was  unfit  to  complete 
the  voyage,  from  the  moment  when  she  received  the  damage.  This 
is  the  way  in  which  we  deal  with  all  questions  of  insurance.  Sup- 
pose the  ship  were  insured  by  a  time  policy  which  terminated  on 
January  l,and  the  ship  received  her  damage  in  December,  but  was 
not  surveyed  and  found  irreparable  until  February,  would  you  say 
that  the  underwriters  were  not  liable  for  the  total  loss?  To  apply 
that  to  the  present  question,  the  community  of  interest  between 
ship  and  cargo,  which  results  from  their  being  liable  to  a  common 
risk,  exists  no  longer   than   until  both   are   in   safety.     That  com- 


18G  MARITIME   LEGISLATION. 

munity  of  interests  wliich  results  from  the  contract  to  carry  the 
cargo  to  its  destination,  exists  no  longer  than  until  it  has  become 
impossible  to  carry  the  cargo  on ;  and  this  impossibility  depends, 
not  on  the  time  when  the  extent  of  damage  is  known,  but  on 
the  time  when  such  damage  takes  place.  I  confess  that  I  do  re- 
gard with  very  great  regret,  and  very  great  fears  for  the  success 
of  our  undertaking,  any  alteration  of  this  section,  even  in  the 
j3rovisoes.  I  feel  that  the  prospect  of  carrying  the  Bill  in  this 
country  is  sensibly  diminished.  The  section,  with  the  provisoes, 
was,  by  those  who  framed  it,  intended  as  a  species  of  compromise. 
By  far  the  largest  concessions  have  been  made  to  the  views  of 
foreign  countries ;  for,  every  English  member  believes  the  allowance 
of  wages  to  be  an  erroneous  course  ;  and  I  regret  to  see  the  majority 
here  moving  step  by  step  further  in  this  direction.  If  gentlemen 
will  press  their  objections  to  the  full  extent,  the  result  will  be,  that 
the  difficulties  we  shall  have  in  this  country  will,  I  fear,  be  very 
much  augmented.  I  regret  what  has  already  been  done  by  carry- 
ing it  on  to  this  extent,  and  I  shall  indeed  regret  if  we  are  induced 
to  go  still  further. 

Mr.  Crusemams".  We  cannot  vote  against  our  convictions. 

Mr.  Engels.  We  think  we  have  made  concessions  in  every 
possible  way. 

Dr.  Wertheim.  Mr.  Lowndes  advocates  the  matter  on  the  part 
of  the  underwriters ;  the  concessions  are  to  them.  If  the  principle 
of  allowing  wages  and  provisions  is  correct,  it  should  be  carried 
out  consistently.  You  should  go  all  the  way,  not  go  half  a  mile, 
and  thi'u  stop  and  hesitate.  We  must  have  a  rule  that  we  can 
act  on.  When  are  the  wages,  &c.  to  be  paid,  and  when  are  they 
to  cease  ?  We  must  know  as  if  we  were  consulting'  our  watch,  or 
else  we  shall  not  know  how  we  stand. 

Ml;.  Lowndes.  I  have  said  that  I  dissented  ciitii'dy  from  the 
princii^le.  Th(!  pamphlets  and  correspondence  wliieli  show  what 
our  views  arc,  the  meeting  are  in  possession  of. 

Dr.  Rahusen.  Every  nation  has  its  own  way  of  considering 
these  questions.  I  woukl  suggest  llial  llie  lir>t  rlau^eofthis  section 
remain,  and  tlieii  we  should  leave  onl  altou'cthcr  the  provisoes  and 
ameiiihiHiil.^  wliich  have  S[)ruiig  oiil  ol'thciii;  thai  we  should  pass 
the  (ir.>i  |»;ii't  (,i"  tlie  section  onlv. 


INTEKNATIONAL   LAW   OF  GENERAL   AVERAGE.         187 

The  Chairman.  Tliis  may  Ix'  put  as  a  separate  motion  after- 
wards. I  must  iirst  take  the  votes  on  Mr.  Lowndes's  amend- 
ment. 

Question  put. 

For 5 

Against   ........     8 

Rejected. 

The  Chairman.  Dr.  lialiusen  nuiy  now  make  any  remarks  he 
thinks  proper. 

Dr.  Rahusen  withdrew  tlie  motion  to  withdraw  tlie  provisoes. 

Mr.  Baily.  I  am  sorry  to  hear  tliat,  for  I  must,  in  that  case, 
move  it  myself. 

The  Chairman.  It  will  then  stand  thus :  '  It  is  now  moved  Ly 
]\Ir.  Baily  that  the  provisoes  be  withdrawn,  and  that  the  clause 
shall  remain.' 

Mr.  Engels.  I  second  it,  because  I  think  we  ought  to  make 
concessions  to  English  usages. 

Mr.  Wendt.  I  am  only  afraid,  if  we  pursue  this  course,  we 
shall  not  be  doing  our  work  properly,  or  as  we  were  sent  to  do  it. 
We  shall  only  have  half-dealt  with  the  question,  for  we  shall  leave 
it  undetermined  what  is  to  be  done  in  cases  where  the  shij)  is  not 
repaired. 

Mr.  Lowndes.  In  answer  to  Mr.  Wendt,  the  real  question  is 
this  :  Will  you  have  uniformity  in  all  respects  ?  or  will  you,  by 
endangering  the  measure,  run  the  risk  of  not  obtaining  uniformity 
at  all  ?  Let  us  not  despise  the  work  because  it  may  be  in  some 
respects  imperfect.  If  we  can  carry  a  measure  which  will  produce 
uniformity  on  the  leading  points,  the  very  fact  of  our  doing  so  will 
tend  indirectly  to  promote  uniformity  in  the  details  which  Ave  are 
now  compelled  to  leave  open. 

Mr.  Crusemann.  I  only  wish  to  say  that  those  two  provisoes 
made  by  the  committee  who  drew  up  the  Bill  were  cei-tainly  thought 
important  enough  to  be  brought  into  the  Bill.  I  am  sorry  now  to 
hear  the  contrary. 

Mr.  Lowndes,  They    were  thought   desirable   as   they  stoo 
originally,  but  not  as  they  stand  now,  when  they  require  us  to  do 
the  direct  contrary. 

Mr.  Bah.y.  1  would  jxHut  out  to  the  gentlemen  present  that 


188  MARITIME    LEGISLATION. 

the  essential  part,  namely,  that  affecting  putting  into  j  ort,  which 
is  an  everyday  occurrence,  has  been  carried  in  favour  of  foreign 
views,  and  what  we  are  considering  now  affects  cases  of  condemna- 
tion only,  cases  which  are  of  comparatively  rare  occurrence.  We 
propose  to  leave  it  an  open  question,  as  you  will  damage  the  Bill  by 
passing  these  provisoes. 

Mr.  We:sdt.  It  is  a  rare  case,  and  yet  Mr.  Baily  lays  great 
stress  upon  it. 

Mr.  Baily.  It  is  the  last  straw  that  breaks  the  camel's  back. 

Mr.  Bradford.  After  the  remarks  of  Mr.  Baily  I  think  we  had 
better  concede  the  point.  I  think  the  principle  of  allowing  wages 
and  provisions  is  very  clear.  The  expenses  of  wages  and  provisions, 
like  all  other  expenses,  should  continue  just  so  long  as  the  contract 
continues,  or  rather  until  it  is  broken  up.  It  is  not  broken  up, 
in  my  judgment,  until  the  facts  are  ascertained.  When  the  facts 
are  ascertained,  and  the  interests  are  not  again  to  be  united,  then 
there  is  a  cessation  of  the  General  Average  charges.  At  the  same 
time,  if  our  English  friends  think  that  the  success  of  this  measure 
is  in  a  gi-eat  degree  dependent  on  this  article,  I  would  concede  it, 
as  w^e  have  already  settled  the  question  of  going  into  port.  I  would 
let  the  other  go,  because  the  object  is  to  come  to  something 
universal ;  although  it  is  contrary  to  every  decision  of  which  I  am 
aware  in  the  Courts  of  America. 

^[r.  Crisemanx.  After  the  remarks  I  have  heard  I  concede  it 
also. 

]\[otion  yiut  and  carried  without  a  division. 

Judge  Marvin  proposed  the  following  amendment :  '  To  strike 
out  the  wliole  of  the  seventh  and  eighth  sections,'  and  substitute 
the  following  :  '  If,  on  account  of  the  damage  suffered  by  the  ship 
in  the  course  of  the  voyage.  wIicIIkm"  of  a  Particular  or  (ieneral 
Average  nature,  the  sickness  or  mortality  of  the  crew,  the  derange- 
ment of  the  .stowage  of  the  cargo,  or  other  the  like  accidents  of  the 
sea,  it  becomes  prudent  and  judicious  in  tlir  master  to  deviate  from 
the  course  of  the  voyage  mid  go  Into  ;i  poii  of  rt'Tnge,  the  expenses 
of  entering  sucli  port,  the  ]iort  charges,  the  unloading  of  the  cargo, 
the  warehouse  rent  or  sloriige  thereon,  the  ex]ienses  of  reloading 
the  cargo  on  Itoin-d,  I  lie  wliaj-fiige  or  dockage  of  the  ship  while  un- 


INTERNATIONAL   LAW    OF   GENETLVL    AVERAGE.         ]80 

lading  and  reloading,  the  wages  and  jn-ovisions  of  Ihc  crew,  from 
the  time  that  the  ship  sliall  bear  up  to  enter  sucli  port  of  refuge 
until  the  time  when  the  ship  can  again  be  got  ready  to  resume  her 
voyage,  the  expenses  of  leaving  the  port,  and  other  incidental  ex- 
penses necessarily  incurred  l)y  Ihe  nuister  for  the  common  benefit, 
shall  all  be  made  good  in  General  Average,  in  all  cases  in  which 
the  master  shall  resume  and  prosecute  the  voyage  with  the  cargo 
on  board.  In  case  the  voyage  shall  be  abandoned  in  such  port  of 
refuge,  tlu^  interests  shall  be  deemed  to  be  dissociated  by  such 
abandonment,  and  the  General  Average  expenses  shall  cease 
thereon,  and  each  interest  shall  thereafter  bear  its  own  expenses.' 
He  objected  against  the  seventh  section  as  it  stood,  that  it  did  nob, 
in  its  first  clause,  at  all  specify  what  were  tlu'  circumstances  under 
which  the  expenses  of  entering  a  port  of  refuge  should  be  admitted 
in  General  Average,  and  yet  made  all  the  subsequent  clauses  de- 
pendent for  their  operation  upon  this  first  clause ;  so  that  the 
section  started  with  uncertainty  and  reasoned  all  through  with 
uncertainty.  He  wished  to  do  that  which  the  clause  as  it  stood 
had  not  done,  viz. :  to  define  the  leading  principle  from  which  all 
was  to  follow.  There  were  on  this  subject  two  principles  between 
which  they  had  to  choose.  By  the  law  of  Spain,  and  ])erhaps  of 
some  other  countries,  the  mode  of  treating  these  expenses  was 
dependent  on  whether  the  original  cause  which  lead  to  the  bearing 
up  for  a  port  was  itself  an  accident  or  a  sacrifice  made  for  the 
common  good.  If  the  ship  bore  up  because  the  masts  had  been 
cut  away  for  the  common  safety,  then  all  the  expenses  of  going 
into  and  coming  out  of  the  port,  and  the  crew's  wages  during  her 
stay  there,  were  treated  as  General  Average.  If,  on  the  other 
hand,  the  master  bore  up  for  a  port  because  the  masts  had  been 
carried  away  by  accident,  that  is,  by  Particular  Average  damage, 
then  all  these  expenses  incidental  to  the  bearing  up  were  treated 
as  Particular  Average.  This  was  one  intelligible  principle ;  but  it 
was  not  the  principle  adopted  in  England,  France,  Holland,  the 
United  States,  and  the  great  majority  of  maritime  communities  of 
the  world.  The  principle  most  generally  held  was,  that,  whether 
the  original  cause  of  the  damage  were  sacrifice  or  accident,  so  long 
as  the  putting  into  port  was  properh'  resorted  to  for  the  common 


]90  MARITIME   LEGISLATION. 

good,  under  a  necessity  arising  during  the  voyage,  the  consequent 
expenses  were  to  be  treated  as  General  Average.  That  was  evi- 
dently the  principle  intended  to  be  embodied  in  the  Bill,  and  he 
regretted  that  this  intention  had  not  been  expressed  more  clearly. 
Brevity  had  been  aimed  at  in  the  draft,  at  the  expense  of  per- 
spicuity. He  had  provided  for  all  that  in  his  amendment.  It 
mio-ht  be  difficult  to  define  all  the  possible  cases ;  questions  might 
be  raised,  for  example,  if  the  putting  in  were  unnecessary,  or  if 
the  ship  were  not  seaworthy  at  starting;  but  so  far  as  the  thing 
could  safely  be  defined,  he  thought  he  had  done  so.  With  regard 
to  the  latter  portions  of  his  amendment,  it  would  be  readily  un- 
derstood. He  thought  that  the  interests  of  ships,  freight,  and 
cargo  might  upon  principle  be  considered  as  associated  together — 
as  being  in  a  condition  of  '  confraternity '  (which  was  a  good 
phrase,  though  not  often  used  in  that  sense  by  lawyers)  up  to  the 
time  when  the  master  abandoned  the  voyage.  The  learned  Judge 
then  entered  upon  a  comprehensive  view  of  the  principles  of 
General  Average,  with  especial  reference  to  the  question  which 
had  been  much  discussed  in  the  pamphlets — whether  the  '  common 
safety '  or  the  '  common  benefit '  were  the  true  test  of  General 
Average.  He  held  that  both  these  conflicting  theories  might  be 
reconciled  by  one  more  comprehensive.  The  '  common  safety  ' 
theory  seemed  to  be  the  better  adapted  to  the  case  of  sacrifices, 
such  as  jettisons  or  the  cutting  away  of  masts  ;  but  when  it  was 
a  question  of  expenditures,  as  in  the  present  cape,  it  was 
necessary  to  resort  to  the  more  extensive  theory  of  '  common 
benefit.' 

The  amendment  was  seconded  by  Dr.  Wertheim,  and  put  to 
the  meeting. 

For  tlie  aniciuliiicut         .....        5 
Against  it       .  .  .  .  .  .  .10 

Tlic  aiufndmont  was  therefore  negatived. 

'I'iikCjiaikman  tlien  read  the  ninth  section,  \\z.  :  '  Daniagcdone 
to  cargo  in  tlie  act  of  discharging  il  ;il  ;i  poi'l  of  rcCiigf  sliall  not 
Ix!  admissible  as  General  Average  in  case  such  cargo  sliall  have 
Ijeen  discharged  at  tlie  place  and  in  \hr  manner  cusloniai-y  at  that 
])ort  with  ships  not  in  dislress.' 


INTKRXATIUXAL   LAW   OF   GENERAL   AVERAGE.         191 

Mr.  11\ily  iii()V('(1  the  omission  of  the  words  'in  the  act  of,' 
and  substitute  the  word  '  by  '  before  tlio  word  '  discharging'.' 

This  was  agreed  to  unanimously. 

Mk.  Delehayk  thouglit  that  if  the  cargo  was  discharged  for 
the  common  good,  and  was  damaged  in  consequence,  such  damage 
shouhl  be  treated  as  a  sacrifice.  He  wished  for  some  explanations 
on  this  head  ;  and  particularly,  why  insert  the  phrase  '  in  the 
manner  customary  at  that  port '  ? 

Mr.  Baily.  I  will  explain  to  you  why  it  is  worded  in  this  way. 
I  am  one  of  those  who  hold  that  damage  done  by  a  forced  discharge 
of  cargo  at  a  port  of  refuge  is  General  Average  in  principle ;  but 
the  allowance  of  it  opens  the  door  to  so  much  fraud  and  injustice 
that  I,  and  many  others  who  thirdc  that  it  ought  to  be  admitted  in 
principle,  have,  on  the  ground  of  expediencv,  agreed  to  exclude  it. 
We  do  not,  however,  think  that  this  practical  objection  applies  to 
the  discharge  of  vessels  on  shore  and  rocks  or  sandbanks ;  or  to 
any  discharge  in  a  manner  unusual  at  a  port  of  refuge  ;  and, 
therefore,  we  limit  the  exclusion  to  the  case  of  an  ordinary  forced 
discharge  at  a  port  of  refuge. 

The  clause  was  then  put  and  carried,  only  one  vote  being  given 
against  it. 

The  Chairman.  We  now  come  to  the  tenth  clause.  I  think  it 
will  be  more  convenient  to  read  the  first  part  of  the  first  clause  of 
the  section  first :  '  The  contribution  to  a  General  Average  shall  be 
made  upon  the  actual  values  of  the  property  at  the  termination  of 
the  adventure,  to  which  shall  be  added  the  amount  made  good  as 
General  Average  for  property  sacrificed,*  without  reference  to  the 
deduction.  I  put  the  question,  that  this  portion  of  section  ten  to 
the  word  '  sacrificed '  shall  be  adopted. 

Carried  unanimously. 

The  Chairman.  Perhaps  we  had  better  now  take  the  deduction 
here  expressed :  '  Deduction  being  made,  from  the  shipowner's 
freight  at  risk,  of  that  portion  of  the  crew's  wages  and  the  port 
charges  of  the  ship,  the  liability  for  which  is  contingent  upon  the 
earning  of  such  freight.'  The  question  is  put  that  this  part  of  the 
clause  be  adopted. 

]Mu.  Baily.    I   have  two  amendments  to  propose — first,  as  to 


192  MARITIME   LEGISLATION. 

the  words,  '  that  portion  of  the  crew's  wages  and  the  port  charges 
on  the  ship,  the  liaLility  for  which  is  contingent  upon  the  earning 
of  such  freio-ht.'  This  clause  has  been  worded  rather  with  refer- 
ence  to  the  Eno-lish  law.  The  laws  in  different  countries  vary  as 
regards  the  liability  to  the  crew  for  wages,  some  making  the  wages 
payable  up  to  the  date  of  the  loss  of  the  ship  ;  some  holding  that 
when  there  is  no  freight  there  are  no  wages.  I  propose,  therefore, 
to  avoid  the  difficulty  by  taking  an  arbitrary  amount  of  the  freight 
as  the  contributory  value  of  that  freight ;  and  I  suggest  that  we 
take  three-fifths  of  the  freight  to  contribute  in-all  cases. 

The  Chairman.  Then  the  amendment  is  to  this  effect :  '  Deduc- 
tion being  made  from  the  freight  of  two-fifths  of  such  freight,  in 
lieu  of  crew"s  wages  and  port  charges  on  the  ship,'  and  you  omit 
the  rest  of  the  original  paragraph. 

Mk.  Rathbone.  I  beg  to  second  that  amendment. 

Mr.  Van  Peborgh  was  in  favour  of  the  amendment.  The 
great  argument  in  its  favour  was  that  it  was  the  only  practical 
method  of  producing  uniformity.  While  the  laws  of  different 
countries  varied  with  respect  to  the  payment  of  the  crew,  any  rule 
of  contribution  based  on  that  payment  would  necessarily  be 
variable  also.  He  wished,  however,  that  the  clause  should  be 
altered  so  as  to  lay  down  a  rule  touching  the  contribution  of 
freight  paid  in  advance.  It  ought  to  be  clearly  defined  whether 
the  shipowner  or  charterer  should  contribute  in  respect  of  such 
advances. 

The  Chairman.  We  must  confine  ourselves  at  present  to  the 
question  of  two-fifths  of  the  freight  in  lieu  of  crew's  wages  and 
port  charges. 

Mr.  Lowndes  preferred  the  clause  in  its  original  form,  because 
they  then  would  stand  on  a  clear  principle,  as  to  which  all  might 
nfree.  1\)  take  an  arbitrary  proportion  seemed  to  be  a  retrogres- 
sion rather  than  an  improvement.  When  a  voyage  was  retarded, 
the  frei<dit  might  be  cufii'i'ly  absdi-hcd  in  wages  and  exjienses. 
Why  not  liave  a  ride  which  would  meet  this  case  ?  l']uongh 
would  have  been  done  towards  uuifonnily  if  a  uniform  pi'inciple 
were  adopted,  though  the  applit-atiou  of  it  might  vary  in  its 
delails. 


INTERNATIONAL  LAW  OF  GENERAL   AVERAGE.         19:} 

Mr.  Baily's  amonclmcnt  was  then  put. 

For  the  amendment  .         .         .         .         .7 

Against  it        .         .         .         .         .         .         .3 

Amendment  carried  accordingly. 

A  discussion  then  took  place  as  to  several  details  of  the  deduc- 
tions to  be  made  from  the  contributory  value  of  the  freight.  In 
order  to  avoid  the  disturbing  effect  of  jn-o  rata  frtMght,  as  allowed 
in  some  countries,  Mr.  Baily  proposed  that  no  deduction  for  wages 
should  be  made  from  jn-o  rata  freight.  This,  however,  was  nega- 
tived. It  was  agreed  that  passage-money  at  risk  should  be  put  on 
the  same  footing  as  freight.  And,  on  the  suggestion  of  Mr.  Cruse- 
mann,  a  clause  was  added  to  provide  for  the  deduction  from  the 
contributory  value  of  all  charges  incurred  subsequently  to  the 
arising  of  the  claim  for  General  Average. 

The  clause,  in  its  amended  form,  was  then  carried  unanimously. 

The  Chairmax.  We  now  come  to  the  last  clause  of  the  section. 
This  is  as  follows :  '  In  case  the  amount  to  be  made  good  sliall 
exceed  the  aggregate  of  contributory  values,  computed  as  above 
stated,  such  aggregate  shall,  in  the  first  instance,  be  taken  towards 
satisfying  the  General  Average;  and  the  excess  of  the  General 
Average  shall  then  be  apportioned  as  if  the  ship  and  the  entire 
cargo  on  board  or  at  a  risk  at  the  time  of  doing  the  act  or  measure 
which  has  given  rise  to  the  General  Average  had  reached  the  port 
of  destination  free  from  damage.' 

A  discussion  arose,  and  some  alterations  were  agreed  to  in  the 
wording  of  this  clause,  after  which 

Dr.  Wertheim  moved  that  the  entire  clause  be  rejected.  He 
would  simply  cut  it  out,  and  substitute  nothing  in  its  place.  It 
would  be  in  vain  to  let  stand  part  of  the  clause,  when  the  whole 
clause  is  entirely  against  all  the  principles  of  law.  When  you  go 
to  the  ancient  law  on  the  principle  of  General  Average  claims,  3'ou 
will  find  that  no  man  is  allowed  to  lose  more  than  the  entire  value 
of  his  property  which  has  been  saved.  Yet  here,  in  1864,  we  are 
called  upon  to  depart  from  that  good  old  principle.  I  am  quite 
sure  that  America,  Holland,  Sweden  and  Belgium  will  keep  to 
the  true  principle.  When  I  have  lost  all  my  property,  my  purse, 
my  money,  and  my  dress — when  I  have  no  money,  and  even  no 

0 


194  MARITIME   LEGISLATION. 

pockets  at  all— then  you  are  not  satisfied  to  leave  me  in  this  forlorn 
condition,  bnt  you  want  nie  to  pay  something  more.  The  only  way 
left  to  me  Avould  be  to  raise  the  money  from  the  underwriters,  and 
the  underwriters  would  not  take  the  risk  under  such  circumstances. 

Mr.  Rathbone.  I  have  often  paid  more  than  a  hundred  per 
cent.,  and  a  very  uncomfortable  state  of  things  it  is. 

Dr.  Franck  seconded  Dr.  Wertheim's  amendment. 

Mr.  Lo^^'^DES.  I  will  endeavour  to  answer  the  illustration  ot 
Dr.  Wertheim,  as  to  his  pockets  being  emptied.  If  a  shipowner 
has  no  other  funds,  and  has  lost  all  his  property  by  the  shipwreck, 
there  is  no  way  which  has  yet  been  made  known  of  extracting 
anything  more  from  him  ;  but  if  he  has  property,  not  perhaps  in 
that  ship,  but  in  another  ship,  or  of  any  other  description,  it  does 
not  appear  so  clear  that  he  ought  not  to  pay  the  debts  incurred  in 
the  unsuccessful  endeavour  to  save  his  ship.  If  Dr.  Wertheim 
were  to  happen  to  have  his  pocket  picked,  although  he  might  lose 
all  the  money  in  that  pocket  or  about  his  person,  yet,  if  he  chose 
to  hire  a  detective  to  attempt  to  recover  his  property,  although  that 
attempt  might  prove  unsuccessful,  he  would  probably  pay  that 
detective  for  his  services.  In  the  same  way  a  ship  may  be  on  the 
shore  and  in  a  position  that  makes  it  uncertain  whether  she  will 
ever  be  got  off.  The  owner  deliberates  as  to  employing  a  steamer 
to  recover  her ;  if  he  knows  that  he  will  be  paid  for  the  expense 
to  be  incurred  whether  the  attempt  is  successful  or  not,  the  proba- 
bility is  that,  if  there  is  a  reasonable  prospect  of  getting  the  ship 
off,  he  Avill  send  down  a  steamer,  and  in  this  way  much  property 
may  be  saved  that  otherwise  would  not.  A  shipowner  of  any  sense 
would  be  very  careful  indeed  how  he  sent  down  a  steamer,  under 
such  circumstances,  for  the  benefit  of  underwriters,  if  he  were  to 
run  the  j'isk  f^f  having  to  pay  for  it  out  of  his  own  pocket.  The 
law  of  General  Average  supposes  a  reasonable  expenditure  and 
judicious  conduct.  It  may  be  said,  'You  have  incurred  expenses 
foolishly,  beyond  the  probable  value  of  the  iidvantage  to  be  derived, 
and  acted  unwisely  in  doing  so';  but,  if  thai  could  be  established 
the  parties  would  hf  cxfiiscil,  fi'diii  all  liabilily.  Supposing  the 
measures  to  1j(^  taken  in  good  faith  and  judiciously,  so  that  any  one 
would  say  it  was  for  the  benefit  of  all,  why  should  the  loss  be  thrown 


INTERNATIONAL   LAW   OF  GENERAL   AVERAGE.         lJ)r> 

upon  one  person,  more  energetic  than  the  re&t,  who  takes  the 
measures  intended  for  the  benefit  of  all  ? 

Judge  Marvin.  I  will  ask  Dr.  Wertheim  a  question  on  this. 
Did  1  understand  him  rightly  to  say  that  by  the  law  of  Holland 
the  owuer  of  the  ship  and  the  owner  of  the  cargo  cannot  be  called 
upon  to  lose  any  more  than  the  whole  ship  and  the  whole  cargo, 
tliut  is,  tliat  the  total  loss  is  the  boundary  and  extent  of  their 
liability  ?  Then,  what  would  they  do  in  such  a  case  as  this  ?  A 
vessel  puts  into  a  port  of  refuge,  where  various  expenses  are  incurred 
for  the  purpose  of  enabling  the  master  to  complete  the  voyage. 
He  has  the  cargo  to  unload,  has  warehouse  rent  to  pay,  and  a 
variety  of  expenses  are  incurred.  The  vessel,  after  making  the 
necessary  repairs,  proceeds  on  her  voyage.  There  has  been  no 
bottomry  bond  given  or  taken  ;  the  master  has  obtained  money  by 
a  bill  on  the  owner  of  the  vessel,  or  perhaps  the  owner  of  the  vessel 
comes  to  the  port  of  refuge  himself  and  pays  all  the  expenses,  and 
every  one  is  satisfied.  Now  then,  the  vessel  starts  on  her  voyage, 
sinks  at  sea,  and  goes  to  the  bottom.  I  wish  to  submit  to  Dr. 
Wertheim  this  question  :  the  shipowner  having  advanced  this 
money,  not  only  for  his  own  benefit  but  also  on  account  of  the 
owner  of  the  cargo,  and  all  these  expenses  being  General  Average, 
the  cargo  having  gone  to  the  bottom,  has  not  the  shipowner,  in 
some  shape  or  other,  a  remedy  against  the  owner  of  the  cargo  for 
the  money  he  has  advanced  ? 

Dr.  Wertheim.  When  the  shipowner  or  captain  acts  in  that 
way,  he  is  obliged,  according  to  clause  334  of  the  Dutch  code,  to 
insure  all  that  which  he  has  disbursed  on  account  of  the  common 
interest,  because  it  is  a  new  contract.  If  he  is  willing  to  take  all 
risk  for  his  own  account,  he  is  free  to  do  that ;  but  he  is  obliged,  if 
he  means  to  claim  it  again,  to  insure  all  the  cost  for  repairs  ;  in 
that  way  he  has  a  remedy. 

Mr.  Baily.  Suppose  there  are  no  insurance  offices  or  under- 
writers, how  does  he  manage  then  ? 

Dr.  Wertheim.  In  Holland  he  can  do  it ;  he  can  go  to  any 
insurance  office  or  underwriter  for  that  purpose. 

Dr.  Rahusen.  The  shipowner  will  receive  a  bill  of  exchange 
drawn  upon  him  :   he  cnn  do  as  he   pleases  about  accepting  it  ;   he 

0  -2 


19G  MARITIME   LEGISLATION. 

need  not  to  accept  it  unless  lie  can  insure  it.  If  lie  insures  it,  lie 
is  safe.  If  lie  does  not  accept  the  bill,  lie  is  safe  too ;  for  if  the 
ship  be  lost,  he  has  only  to  abandon  the  ship  and  freight,  and  then 
he  is  clear.     All  that  is  quite  simple. 

Mr.  Baily.  The  flaw  here  is,  that  you  render  it  almost  impos- 
sible for  a  captain  at  a  distant  port  to  raise  money  by  bill  on  his 
owners.  He  can  never  be  secure  of  his  bill  being  accepted,  and  no 
agent  on  the  spot  could  prudently  take  a  bill.  In  the  generality  of 
cases  shipowners  could  not  protect  themselves  by  insurance  under 
such  circumstances.  Besides,  owing  to  telegrams,  &c.  it  is  not  an 
unusual  thing  to  hear  of  a  loss  at  the  same  time  as  of  a  necessity 
for  an  insurance.  Men  will  not  run  such  risks  when  they  advance 
money  for  other  people. 

Judge  Marvin.  The  proposition  of  Dr.  Wertheim  is  sound  as 
to  sacrifices ;  if  your  goods  are  thrown  overboard,  there  is  an  end 
of  the  matter,  you  ought  not  to  pay  any  more.  The  same  as  to 
stranding ;  the  same  as  to  sacrifices,  such  as  cutting  away  masts. 
The  loss  of  the  thing  is  the  end  of  it ;  but  wdien  the  master  of  the 
ship  advances  money  for  your  benefit  when  in  a  port  of  distress, 
you  ought  to  pay  it.  So  that,  as  to  expenditure  made  in  a  port  of 
refuge,  it  appears  to  me  there  should  be  some  provision  made 
whereby  he  must  be  repaid  where  some  of  the  property  is  lost,  and 
the  property  saved  is  insufficient  to  pay  the  expenses. 

^Ir.  Engels.  In  some  instances  it  may  not  be  easy,  or  even 
possible,  to  insure  a  vessel ;  in  some  places  they  will  not  insure  all 
vessels.  This  is  the  risk  which  any  shipowner  has  to  consider ; 
but  there  is  a  great  deal  of  inconvenience  and  hardship  in  obliging 
me  to  pay  all  my  property  away  because  you  choose  to  run  me  into 
debt.     We  have  had  in  Belgium  a  shipowner  of  a  certain  vessel 

called  the  ' ,'  a  small  vessel,  who  was  obliged  to  sell  her  off,  even 

the  beds,  and  was  reduced  to  poverty.  I  aui  speaking  of  a  shipowner 
who  only  has  a  ship  or  two.  We  say,  '  You  may  have  the  liberty  of 
abandoning  the  property,'  and  let  the  lender  of  the  money  look  out  for 
himself;  lie  can  protect  himself  by  a  loan  on  bottomry.  That  is  the 
jiiiiiriplo  of  the  law  laid  down  in  I'clgiiiiii,  Ii(jlland,  and  elsewhere. 

Mr.  Baily.  The  effect  of  llic  clause,  as  it  stands,  may  be 
illiiHtratod  thus:  If  a  steamer,  Ww.  hire  of  which  is  1,200/.,  is  sent 


INTERNATIONAL  LAW  OF  GENERAL  AVEUAOE.    197 

down  to  save  2,000/.  worth  of  property,  which  l)y  casualties,  after, 
or  imknovvn  at  the  time  when  the  steamer  is  sent,  is  reduced  in 
value  to  1,000/.,  that  1,000/.  is  credited  to  the  1,200/.  expenses  that 
have  been  incurred,  and  the  balance,  200/.,  is  paid  by  all  the 
property  which  it  was  intended  to  save,  i.e.  the  1,200/,  I  send 
down  a  steamer  to  sjive  A  and  B's  goods.  A's  goods  are  totally 
lost,  and  B's  goods  are  saved.  The  proceeds  of  B's  goods  are  put 
to  the  credit  of  the  expenses,  and  the  excess  of  expenses  over  the 
proceeds  is  paid  by  A  and  B.  B  cannot  bo  made  to  pay  the 
whole  expenses,  and  you  must  repay  the  party  who  has  incurred 
the  expense. 

Mk.  Kathbone.  Mr.  Engels,  you  would  not  make  B  pay  the 
expenses  of  A  and  B.  The  captain  is  simply  the  agent  of  the 
owner,  and,  therefore,  making  the  captain  responsible  is  making 
the  owner  responsible ;  is  not  that  the  case  in  Belgium  as  in 
England  ? 

Mk,  Engels.  He  is  only  liable  to  the  extent  of  the  value  of 
the  vessel  in  that  country. 

The  Chairman.  In  England  the  expenses  that  are  necessary 
are  allowed. 

Mr,  Rathbone,  These  expenses  have  been  incurred,  and  must 
be  borne  by  somebody. 

The  CiiaiRxMAN,  Are  you  to  go  upon  the  owner  of  the  property 
for  the  deficiency  which  the  cargo  saved  will  not  meet  ? 

Mr,  Baily.  Perhaps  we  had  better  withdraw  the  clause 
altogether. 

The  Chahoian,  It  is  put  to  the  committee  that  this  latter  part 
of  the  clause  shall  be  struck  out. 

Carried  unanimously, 

Mr.  Baily,  There  was  one  amendment  postponed,  at  the  end 
of  section  eight,  I  now  propose  to  add,  '  Except  that  any  portion 
of  the  cargo  left  at  such  port  of  refuge  on  account  of  its  unfitness  to 
be  carried  by  the  ship,  shall  not  contribute  to  such  General  Average.' 

The  Chairman,  Is  it  the  pleasure  of  the  meeting  that  these 
words  shall  be  added  ? 

Mr,  Chusemann,  I  do  not  know  that  the  word  '  unfit '  would 
be  the  proper  expression  there. 


J03  MAElTIMl!:    LEGISLATION. 

The  Chairman.  I  do  not  think  yon  will  find  a  better  word  to 
express  the  meaning  intended. 

Mr.  Crusemann.  There  may  be  goods  remaining  behind,  be- 
cause the  ship  cannot  take  them,  the  stowage  not  being  in  a  state 
to  take  them.  If  you  have  a  ship  capable  of  stowing  only  400 
bales  of  cotton,  it  is  impossible  to  bring  400  bales  more  in  her, 
and  therefore  some  part  of  the  cargo  must  remain  behind,  and 
there  these  expenses  would  be  apportioned  on  those  goods  remain- 
ing behind. 

Mr.  Baily.  I  do  not  wish  to  go  into  that. 
The  Chairman.  It  might  be  made  to  stand  thus :  '  either  the 
unfitness  of  the  goods  to  be  conveyed  or  the  unfitness  of  the  ship 
to  carry  them.' 

]\Ir.  Lowndes.  This  proposition,  as  amended,  is  contrary  to 
that  pi'oviso  about  which  we  had  such  a  fight  in  the  morning ;  it 
is  undoing  what  was  then  done. 

Mr.  Baily.  I  will  alter  my  amendment  as  proposed  by  our 
Chairman,  and  it  will  then  stand  thus  :  ,'  Except  that  any  portion 
of  the  cargo  left  at  such  port  of  refuge  on  account  of  its  unfitness 
to  be  carried  by  the  ship,  or  the  unfitness  or  inability  of  the  ship 
to  carry  it  forward,  shall  not  contribute  to  such  General  Average.' 
Mii.  Lowndes  was  so  unwilling  by  a  side  wind  to  defeat  the 
arrangement  come  to  in  the  morning,  when  the  foreign  members, 
after  carrying  their  amendment,  withdrew  it  out  of  deference  to 
the  wishes  of  the  English  members,  and  consented  to  leave  the 
allowance  of  wages  in  the  case  of  condemnation  an  open  question, 
that  he  felt  obliged  to  oppose  Mr.  Baily 's  proposition  in  its  amended 
fi trill.  In  cases  of  condemnation  this  clause  would  always  come 
into  ()])eration  through  the  words  'unfitness  or  inability  of  the  ship 
to  caiTv  foi-\v;ii-(l  I  lie  cargo;'  and  Ihus  in  all  these  cases  there 
woiiM  br  no  allowanci-  oC  crew's  wages  in  General  Average.  This 
was  i-.-tnriiiiig  to  ihe  shile  of  things  first  negatived,  and  then  \v{'t 
an  open  question,  in  our  discussion  Ihis  morning. 

The  CiiAlliMAN.  Mr.  liaily  juit  I'oiwaid  lasl  eNcning  the  lual  Icr 
now  in  hand,  and  il  was  understood  llial  tliis  was  atrreed  to.  Mr. 
I'aily  iindiTi odk  tu  I'dVanie  the  pi-oviso.  At  lii'st  Mr.  Crusemann 
Keenr<l  to  lia\c  some  olijecl  ions.      Mi-.  Haily  lias  now  corr.-cted  his 


INTERNATIONAL   LAW   OV   GENERAL   AVERAGE.         190 

aniciuliufiit  so  as  to  meet  liis  vit-ws.  This  addil  ion  applies  solely 
to  cast's  wherci  the  vessel  goes  into  tlic  port  and  out  of  t]ie  port 
with  her  cargo,  and  merely  introduces  an  exception  when  somo 
part  of  the  cargo  is  left  behind  from  having  been  sea-damaged. 
The  words  were  added  merely  to  define  this,  that  the  cargo  which 
has  finished  its  car(>er  does  not  contribute  to  the  subsequent 
i\\penses,  any  more  than  to  masts  cut  away  in  the  future  progress 
of  the  voyage.  I  think  with  perfect  confidence  it  applies  to  the 
case  in  which  the  ship  proceeds  upon  the  voyage,  not  where  the 
shi[)  has  been  condemned  ;  condemnation,  therefore,  is  out  of  the 
question. 

Mk.  Baily.  ]\Ir.  Lowndes  is  under  a  complete  misapprehension 
as  to  the  effect  of  my  clause.  It  must  be  taken  in  connection  with 
the  rest  of  the  sentence,  wliieh  limits  its  operation  to  the  case  in 
wliich  the  ship  '  shall  have  sailed  from  the  port  of  refuge  with  her 
original  cai'go,  or  part  of  it.' 

Mr.  Lowndes.  The  principle  contended  for  by  Mr.  Orusemann 
was  this,  that  the  communion  between  ship  and  cargo  continued, 
even  when  the  cargo  was  not  reladen,  beyond  the  discharge  of  the 
cargo.  This  view  prevailed,  but  it  was  agreed  to  leave  the  matter 
open.  Mr.  Baily's  clause  certainly  appears  to  contradict  this  view. 
^J'hus  it  is  undoing  our  morning's  work. 

The  Chairman.  I  will  now  put  the  question  whether  this  shall 
be  adopted  by  the  meeting  or  not. 

For  the  resolution  .  .  .  .  .  .11 

Against  it     .         .         .         .         .         .         .2 

The  amendment  carried. 

Mr.  Lowndes.  In  consequence  of  what  took  place  at  our 
sitting  yesterday,  I  have  drawn  a  clause  in  this  form,  to  be  made 
the  eleventh  section  of  the  Bill :  '  In  every  case  in  which  a  sacrifice 
of  cargo  is  made  good  as  General  Average,  the  loss  of  freight,  if 
any,  which  ia  caused  by  such  loss  of  cargo,  shall  likewise  be  so 
made  good.' 

Judge  Marvin.  I  second  that. 

Carried  unanimously. 

Judge  Marvin.  I  wish  to  move  that  in  the  first  section  the 
words,  '  or  other  wood  cargo,'  may  be  introduced. 


200  MARITIME   LEGISLATION. 

The  CriAiRM.w.  T  cannot  infcrfero  with  the  business  of  my  pre- 
decessor in  this  chair.  Section  one  and  section  two  have  been  passed. 
If  that  which  is  now  proposed  has  not  been  fully  discussed,  that 
would  be  a  reason  for  my  alistaining  from  introducing  any  altera- 
tion now,  because  it  ought  not  to  be  introduced  without  further 
discussion. 

The  Chairman.  I  believe  I  may  now  announce  to  the  meeting 
that  their  discussions  upon  the  Bill,  which  it  is  proposed  should  be 
submitted  to  the  Legislature,  are  closed.  Before  separating,  I  feel 
that,  having  so  far  performed  my  duty  in  presiding  over  your 
deliberations  down  to  the  settlement  of  the  Bill,  although  I  might 
conclude  with  merely  thanking  you  for  the  willingness  with  which 
you  have  honoured  my  humble  efforts  to  assist  you,  I  should  only 
liave  performed  a  part  of  my  duty  if  I  were  to  stop  here.  A  great 
deal  has  yet  to  be  considered  and  determined  upon,  and  proceedings 
to  be  resolved  on  and  adopted,  before  any  practical  results  shall 
follow  the  deliberations  in  which  we  have  now  been  engaged,  and 
it  is  with  a  view  to  your  assistance,  to  facilitate  the  efforts  you  have 
to  make  to  give  effect  to  this  Bill,  and  to  the  exertions  you  have  in 
common  made  to  settle  this  question,  that  I  have  presided  at  this 
meeting.  It  will  have  been  observed  that  I  have  myself  cautiously 
abstained  from  expressing  any  opinion  upon  the  different  clauses 
which  have  come  under  consideration  and  been  discussed.  I  have 
done  so  for  two  reasons ;  in  the  first  place,  upon  a  subject  so  com- 
plicated, a  subject  not  merely  involving  questions  of  law,  upon 
which,  perhaps,  I  could  have  been  prepared  at  any  moment  to 
express  a  definite  opinion,  but  involving  questions  of  expediency 
and  public  policy,  not  only  throughout  Great  Britain  but  through- 
out tlio  world,  I  liave  abstained  from  forming  any  opinion  until  I 
sliall  havi'  referred  to  those  who  have  made  themselves  masters  of 
the  subject,  especially  until  1  have  referred  to  the  treatises  and 
works  which  have  Ix'eu  {lublished.  and  to  which  my  very  learned 
friend  Judge  Marvin  lias  alluded.  But  there  is  another  reason 
why  1  abstain.  Sooner  or  later — I  hope  slneen'ly  soon  and  not 
late — 1liis  l)ill  or  some  such  Bill  will  (•(une  iiiidei'  the  consideration 
of  tlie  Legislature.  Having  tlie  honoiii'  to  lie  ;i  member  of  that 
Jjegisluture,   J    wouM    hold    niyselC  free   and    independent   to   take 


IXTEnNATIONAT.  TAW   OF  GENERAL   AVERAGE.         L>OI 

that  course  upon  llio  Hill,  or  ii]ion  jifirticnlar  clauses  of  tlie  Tiill, 
wliicli  may  appear  expedient,  not  now  only,  l)ut  under  the  cir- 
cumstances which  may  exist  wlienever  that  Bill  may  come  before 
the  Legislature.  It  is  upon  these  grounds  only  that  I  have  re- 
frained from  expressing  any  opinion  myself;  but  so  many  gen- 
tlemen are  here  assembled  who  are  perfectly  adequate  to  form  a 
sound  judgment,  that,  had  I  been  inclined  to  indulge  in  any  opinion, 
I  should  liave  thought  it  unwise  to  express  such  an  opinion.  Let 
us  consider,  for  a  few  moments,  what  are  the  steps  about  to  be 
taken.  If  a  Bill  of  this  character  be  submitted  to  the  House  of 
Commons,  or  either  branch  of  the  Legislature,  and  it  comes  clothed 
and  supported  by  the  sanction  and  approval  of  the  great  majority  of 
the  mercantile  community  of  the  country :  if  the  member  who 
brings  it  forward  can  assert  that  it  has  received  the  approval  of 
this  and  that  Chamber  of  Commerce,  and  of  a  body  of  commercial 
persons  who  were  in  possession  of  the  sentiments  of  the  whole 
inhabitants,  for  example,  of  the  towns  of  Liverpool,  Manchester, 
Bristol,  Glasgow,  and  Hull,  and  other  great  commercial  commu- 
nities, then,  though  there  might  be  ditlerences  of  opinion  as  to 
details,  yet,  if  the  House  were  satisfied  that  this  Bill  truly  and 
adequately  represents  the  opinions,  the  principles,  and  the  wishes 
of  the  great  majority  of  the  mercantile  community,  the  Bill  is 
almost  certain  to  receive  the  sanction  of  the  Legislature.  If,  on 
the  other  hand,  this  Bill  were  to  be  the  subject  of  great  difference 
of  opinion,  such  as  would  lead  to  much  discussion  in  the  House  of 
Commons,  the  members  for  Liverpool  insisting,  perhaps,  on  one 
set  of  clauses,  and  those  for  Hull,  for  Glasgow,  or  Bristol  for 
another  set  of  clauses,  so  that  the  House  of  Commons  might  be 
ignorant  as  to  whether  they  were  or  were  not  meeting  the  wishes 
of  the  great  majority,  then  it  would  be  impossible  that  the  Bill 
could  pass.  Let  me,  therefore,  recommend  that  the  Bill  should 
contain  such  provisions  as  the  great  majority  of  that  community 
are  willing  and  disposed  to  have  passed  and  made  into  law.  I 
think  you  ma}'  be  pretty  sure,  after  the  discussion  which  has  taken 
place,  that  what  the  great  majority  of  those  assembled  here  have 
deliberately  approved  of  will  receive  the  sanction  of  the  commercial 
community.     Let  me  advise  every  member  to  see  that  he  has  the 


20-2  MARITIME   LEGISLATION. 

sanction  of  the  gTeat  commercial  world  in  this  matter.  You  must 
go  to  our  Legislature,  supported  by  the  sanction  and  the  approval  of 
other  countries  also.  It  would  be  in  vain  for  Great  Britain  to 
make  an  Act  of  Parliament  in  relation  to  the  subject  of  General 
Average,  already  dealt  with  by  the  common  law  and  acted  upon 
in  our  courts,  unless  you  were  jn^etty  sure  of  its  becoming  likewise 
the  commercial  law  of  the  world,  or  that  it  was  tolerably  sure  to 
receive  the  approval  of  the  chief  commercial  countries  of  Europe 
and  of  America.  I  think  you  may  well  begin  in  this  country,  be- 
cause, while  1  highly  respect  the  Legislatures  of  many  other  nations, 
I  think,  considering  the  familiarity  we  in  this  country  have  acquired 
with  every  branch  of  commercial  law,  that,  if  the  British  Legisla- 
ture were  to  pass  an  Act  of  this  nature,  it  would  become  a  precedent 
or  an  example  which  would  be  readily  and  immediately  adopted, 
chiefly  and  first,  I  may  hope,  in  the  United  States  of  America, 
that  great  maritime  nation,  and  also  in  France,  Germany,  Spain, 
Belgium,  Holland,  and  other  great  commercial  communities  of 
the  world.  I  will  suppose,  therefore,  that  you  have  received  the 
sanction  of  the  other  maritime  and  commercial  nations  of  the 
woi'ld.  Then  will  come  the  question — and  here  I  have  a  few  words  to 
address  to  you  which  may  be  of  some  use  to  you — then  will  come 
the  question  how  you  are  to  bring  forw^ard  this  Bill  in  the  Legis- 
lature. In  the  first  place,  you  would  have  to  engage  some  counsel 
at  the  bar,  accustomed  to  the  preparation  of  Acts  of  Parliament 
and  drafts  of  Bills.  If  I  may  use  such  an  expression,  the  substance, 
to  the  very  letter,  of  this  Bill  as  agreed,  must  be  religiously  adhered 
to,  and  not  departed  from  in  the  least,  but  the  phraseology  must 
be  altered  in  some  immaterial  instances  ;  while  the  substance  is 
almost  religiously  maintained,  the  form  must  be  put  into  the  usual 
form  of  an  Act  of  Parliament.  After  this  the  Bill,  thus  put  into 
Kliapo,  must  be  introduced  iulo  ilic  llonse  of  Commons.  To  whom, 
there,  are  you  to  ciiIimisI  iliis  inqwrtant  oflice  ?  One  method  is,  to 
introduce  the  Bill  by  imaus  of  the  (iovernment  of  the  country.  It 
is  in  that  case  brought  forward  as  a  liill  which  has  received  the 
sanction  ol'  tln'  (Idvcrnnicnt ,  wliidi  ;i  ni('nil)(M-  of  the  Government 
will  introduce.  AndlluT  met  IkmI  is,  lo  liavi'  the  \Vi\\  1)rought  for- 
wai'd   liy  an   indiviihial    nicniber  ol    rarliament,   who  may  or  may 


INTERNATIONAL  LAW   OF  GENERAL   AVERAGE.         l>03 

not  receive  the  support  of  the  (lovernnient  uiid  of  tlie  House.  If 
you  can  obtain  the  support  of  tht^  (ioveniment,  by  all  means  do  so, 
for  then  your  Bill  is  almost  sure  to  pass.  If  a  member  of  the 
Government  should  brin<^  forward  a  Bill,  which  has  received  the 
sanction  of  the  commercial  interests  of  Great  Britain,  and  of  the 
chief  commercial  nations  of  the  world,  it  would  pass  throug-h  the 
House  of  Commons  and  the  House  of  Lords  with  a  great  deal 
of  support  and  no  substantial  opposition,  and  no  material  variation 
or  modiiication  might  be  made  in  it.  If  you  can,  therefore,  do 
so,  by  all  means  obtain  the  sanction  of  the  Government.  The 
mode  of  doing  that  would  be  for  a  deputation  to  proceed  to  the 
President  or  Vice-President  of  the  Board  of  Trade,  and  request 
him  to  confer  with  the  Prime  Minister  of  the  crown,  and  to 
announce  to  him  that  the  Bill  had  already  received  the  sanctions 
to  which  I  have  alluded,  and  he  might  be  induced  to  bring  it 
forward  in  his  place  in  Parliament,  when  it  would  be  pretty  certain 
to  pass  withont  opposition.  It  may  be,  however,  that  the  Govern- 
men,  though  perfectly  willing  to  support  such  a  measure,  might 
not  think  it  was  within  their  province  to  bring  it  forwaixl,  especially 
if  much  pushed  and  pressed  by  other  business,  and  then  will  come 
the  task,  and  by  no  means  an  easy  one,  but  a  very  delicate  and 
difficult  matter — to  consider  to  what  member  or  members  you  will 
entrust  this  Bill.  Let  me  resort  to  the  exhaustive  process.  You 
must  not  offer  it  to  any  individual  member  of  the  Government.  If 
he  represented  a  mercantile  constituency,  and  could  safely  under- 
take it,  he  might  be  obliged,  from  some  difference  of  opinion  of  his 
constituents,  and  likewise  in  the  same  way  if  one  of  his  colleagues 
wished  him  to  do  so,  to  alter  it,  and  thus  endanger  the  measure. 
Neither  should  I  recommend  you  to  entrust  the  Bill  to  any 
one  who,  having  been  a  member  of  a  past  Government,  is  likely 
to  be  a  member  of  a  succeeding  one  in  case  of  a  change  in 
the  Administration ;  and  on  this  ground  I  must  exclude  and 
except  myself.  On  the  breaking  up  of  the  present  Government, 
it  might  be  that  I  sh :)uld  become  a  member  of  the  following 
Government,  and  I  might  find  myself  embarrassed  by  the  oppo- 
sition of  some  of  my  colleagues.  Avoid,  therefore,  a  member 
of  the  Government,  or  a  member  of  a  past  Government  likely  to  be 


204  MARITI^JE   LEGISLATION. 

a  member  of  a  future  Government ;  and  tlien  consider  to  wliat 
description  of  persons  you  may  entrust  the  Bill.  It  should  be 
entrusted  to  at  least  two  members,  one  of  whom  should  be  a 
mercantile  man,  and  representing  a  mercantile  constituency.  Then 
he  must  have  the  aid  and  the  support  of  another  member,  who 
should  be  a  member  of  the  bar — a  learned,  and  experienced,  and 
accomplished  lawyer.  Without  the  advocacy  of  two  gentlemen  of 
that  description — a  mercantile  man  able  to  take  his  part  in  the 
debates  that  must  ensue  during  the  progress  of  the  measure,  and 
an  able  and  experienced  lawyer,  able  to  take  an  active,  prominent, 
and  continual  part  in  every  stage  of  the  passing  of  the  Bill,  there 
would  be  no  hope  that  your  Bill  would  succeed.  Then  you  must 
take  care  to  secure  the  support  of  as  many  members,  mercantile 
and  legal  also,  from  both  sides  of  the  House  as  possible.  There  is 
always  a  danger  arising  in  bringing  in  a  Bill  under  the  sanction  of 
the  members  of  one  side  of  the  House  only.  If  the  proposer  and 
seconder  and  all  the  promoters  of  the  Bill  are  on  one  side  of  the 
House,  there  is  a  danger  of  raising  suspicion  as  to  the  party  cha- 
racter of  the  Bill,  which  may  be  hazardous  to  its  success.  Whether 
myself  a  member  of  the  Government,  or  out  of  the  Government,  if 
I  shall  be  a  member  of  either  House  of  the  Legislature  when  this 
Bill  is  brought  forward,  you  may  feel  perfectly  assured  I  shall  not 
forget  the  business  we  have  gone  through  to-day  and  yesterday, 
and  you  may  rely  upon  every  exertion  I  can  make  to  give  effect  to 
your  wishes. 

Mr.  Wendt.  I  think  we  all  have  to  thank  the  Chairman  for 
the  kindness  with  which  he  has  now  addressed  us,  and  the  willing- 
ness and  diligence  with  which  he  has  aided  our  deliberations  on 
this  occasion, 

Mii.  Lowndes.  I  am  quite  sure  we  are  all  perfectly  unanimous 
in  expressing  the  extreme  obligation  which  wo  all  feel  ourselves 
uiidi-r  to  Sir  I'ltzroy  Kelly.  lie  has  come  to  aid  us,  not  con- 
bidcring  it  oiu'  of  I  hose  things  which  were  to  be  got  through  as  a 
troublesoine  and  irksome  task,  as  many  would  have  found  it,  but 
iiHS  laken  a  lively  inten-Ht  in  flic  business  of  the  committee,  has 
given  us  advice  of  the  greatest  value,  and  has  also  throughout  our 
discussions  most  materially  benefited    uur    cause.     We    are  most 


INTERNATIONAL  LAW   OF  GENERAL   AVERAGE.        205 

warmly  and  deeply  indebted  to  him  ;  and  tliougli  I  can  but  in- 
adequately express  the  feelings  of  the  committee  on  this  occasion, 
I  trust  he  will  accept  our  sincere  thanks  for  the  service  he  has 
rendered  to  us. 

The  Chairman.  I  return  my  best  thanks  to  yourselves ;  and, 
in  taking  my  leave  of  you,  can  very  sincerely  assure  you,  not  only 
that  I  have  taken  a  most  lively  interest  in  all  that  has  passed  here, 
but  also  shall  continue  to  feel  a  pleasure  in  the  remembrance  of 
these  proceedings  for  a  long  time  to  come,  and  more  particularly 
in  having  made  the  acquaintance  of  so  many  able  and  distinguished 
persons,  whose  acquaintance  I  hope  I  shall  continue  to  enjoy  for 
many  years. 

The  Chairman  withdrew. 

Mr.  Wendt  was  called  to  the  Chair. 

Judge  Makvin  proposed  the  following  resolution  :  '  Resolved 
that  the  thanks  of  this  meeting  be  recorded  to  our  Chairman,  Sir 
Fitzroy  Kelly,  for  his  able  and  distinguished  conduct  while  pre- 
siding over  this  committee.' 

Seconded  and  carried  unanimously. 

The  International  General  Average  rules  framed  at  the  above 
congress  are,  therefore,  as  follows  : — 

Jettison  of  Beck  Cargo. 

I.  A  jettison  of  timber  or  deals,  or  any  other  description  of 
wood  cargo,  carried  on  the  deck  of  a  ship  in  pursuance  of  a  general 
custom  of  the  trade  in  which  the  ship  is  then  engaged,  shall  be 
made  good  as  General  Average,  in  like  manner  as  if  such  cai-go 
had  been  jettisoned  from  below  deck. 

No  jettison  of  deck  cargo,  other  than  timber  or  deals,  or  other 
wood  cargo,  so  carried  as  aforesaid,  shall  be  made  good  as  General 
Average. 

Every  structure  not  built  in  with  the  frame  of  the  vessel  shall 
be  considered  to  be  a  part  of  the  deck  of  the  vessel. 

Damage  hy  Jettison. 

II.  Damage  done  to  goods  or  merchandise  by  water  which  un- 
avoidably goes  down  a  ship's  hutches  opened,  or  other  opening 


2C6  MARITIME   LEGISLATION. 

made,  for  tlie  purpose  of  making-  a  jettison,  si i all  l)e  made  good  as 
General  Average,  in  case  the  loss  by  jettison  is  so  made  good. 

Damage  done  by  breakage  or  chafing,  or  otherwise  from  de- 
ran  o-ement  of  stowage  consequent  upon  a  jettison,  shall  be  made 
good  as  General  Average. 

Exti7i(juisJiing  Fire  on  Sliijihoard. 

III.  Damage  done  to  a  ship  and  cargo,  or  either  of  them,  by 
water  or  otherwise  in  extinguishing  a  fire  on  board  the  ship,  shall 
be  General  Average. 

Cutthig  away  Wrecl\ 

IV.  Loss  or  damage  caused  by  cutting  away  the  wreck  or 
remains  of  spars,  or  of  other  things  which  have  previously  been 
carried  away  by  sea  peril,  shall  not  be  made  good  as  General 
Average. 

Voluntary  Stranding. 

V.  "\Ylien  a  ship  is  intentionally  run  on  shore  because  she  is 
sinking  or  driving  on  shore  or  rocks,  no  damage  caused  to  the 
ship,  the  cargo,  and  the  freight,  or  any  or  either  of  them,  by  such 
intentional  running  on  shore,  shall  be  made  good  as  General 
Average. 

Carrying  a  Press  of  Sail. 

\J.  Damage  occasioned  to  a  ship  or  cargo  by  carrying  a  press 
of  .sail  shall  not  be  made  good  as  General  Average. 

Port  of  Pefnge  Expenses. 

\]].  When  a  ship  shall  have  entered  a  port  of  refuge  under 
such  circiniistances  that  the  expenses  of  entering  the  port  are  ad- 
missible as  General  Average,  and  when  she  shall  have  sailed  thence 
witli  lier  original  cai-go,  or  a  pai-t  of"  it,  the  corres]wnding  expenses 
of  leaving  such  jjort  shall  likewise  be  so  admitted  as  General 
Average;  and  whenever  the  cost  of  diseli;irgiiig  cargo  at  such  port 
is  admissible  as  (Jenei-al  Average,  tlie  cost  of  reloading  and  stowing 
such  cargo  on  board  the  said  ship,  together  with  all  storage  charges 
(III   such   cargo,  shall   likewise  be  so  adinitled,      Mxcept  that  any 


INTERNATIONAL   LAW   OF  GENERAL   AVERAGE.  'J07 

portion  of  the  cargo  left  at  siicli  port  of  refuge,  on  account  of  its 
being  unfit  to  be  carried  forward,  or  on  account  of  tlic  unfitness  or 
inability  of  the  ship  to  cany  it,  shall  not  be  called  on  to  contribute 
to  such  General  Average. 

Wages  and  Maintenance  of  Crew  in  Port  of  Jiefuge. 

YIII.  When  a  ship  shall  have  entered  a  port  of  refuge  under 
the  circumstances  defined  in  Section  VII.,  the  wages  and  cost  of 
maintenance  of  the  master  and  mariners,  from  the  time  of  entering 
such  port  until  the  ship  shall  have  been  made  ready  to  proceed  upon 
her  voyage,  shall  be  made  good  as  General  Average.  Except  that 
any  portion  of  the  cargo  left  at  such  port  of  refuge  on  account  of 
its  being  unfit  to  be  carried  forward,  or  on  account  of  the  unfitness 
or  inability  of  the  ship  to  carry  it,  shall  not  be  called  on  to  con- 
tribute to  such  General  Average. 

Damage  to  Cargo  in  Discharging. 

IX.  Damage  done  to  cargo  by  discharging  it  at  a  port  of  refuge 
shall  not  be  admissible  as  General  Average,  in  case  such  cargo  shall 
have  been  discharged  at  the  place  and  in  the  manner  customary  at 
that  port  with  ships  not  in  distress. 

ContriLutorij  Values. 

X.  The  contributions  to  a  General  Average  shall  be  made  upon 
the  actual  values  of  the  property  at  the  termination  of  the  adventure, 
to  which  shall  be  added  the  amount  made  good  as  General  Average 
for  ]n-operty  sacrificed ;  deduction  being  made  from  the  shipowners' 
freight  and  passage-money  at  risk,  of  two-fifths  of  such  freiglit, 
in  lieu  of  crew's  wages,  port  charges,  and  all  other  deductions; 
deduction  being  also  made  from  the  value  of  the  property  of  all 
charges  incurred  in  respect  thereof  subsequently  to  the  arising  of 
the  claim  to  General  Average. 

XI.  In  every  case  in  which  a  sacrifice  of  cargo  is  made  good  as 
General  Average,  the  loss  of  freight,  if  any,  which  is  caused  by 
such  loss  of  cargo,  shall  likewise  be  so  made  good. 

Mr.  Lowndes,  the  secretary  of  the  section,  proposed  the  fol- 
lowinsr  resolutions,  which  were  seconded  and  carried  : — ■ 


208  MARITIME   LEGISLATION. 

1.  That  a  short  report  of  our  proceedings  be  at  once  drawn 
up  by  the  secretary,  and  presented  to  the  council  of  the  Social 
Science  Association,  with  a  request  that  it  be  entered  on  the 
minutes  of  the  Association ;  and  that  a  copy  of  the  same  be 
furnished  to  each  member  of  the  committee. 

2.  That  a  further  report  of  the  proceedings  be  afterwards 
drawn  up  by  the  secretary,  printed,  and  circulated. 

3.  That  the  draft  Bill  as  now  amended  in  congress,  ought,  in 
the  opinion  of  this  congress,  to  be  the  basis  of  International 
General  Average  Law. 

4.  That  in  order  to  carry  out  this  object,  associations  should 
be  formed,  or  other  measures  taken  in  each  of  the  countries  repre- 
sented in  congress,  and  in  other  countries  where  practicable,  for 
the  purjDose  of  causing  this  Bill  to  become  the  law  and  practice 
of  such  country. 

5.  That  this  end  should  be  pursued  through  the  Legislatures 
of  each  country  where  practicable,  and  also,  pending  legislation, 
by  means  of  clauses  to  be  introduced  into  bills  of  lading  and 
charter  parties. 

6.  That  the  clauses  recommended  for  this  purpose  be  the 
following :  '  All  claims  for  General  Average  to  be  settled  in 
conformity  with  the  International  General  Average  rules,  framed 
at  York  in  18Gi.' 

7.  That,  for  the  execution  of  these  resolutions  in  each  of  the 
places  represented  in  this  congress,  the  following  representatives 
be  appointed  in  the  name  of  the  York  Congress  : — 

Holland. — E.  Driebeek,  LL.D. ;  E.  N.  Ilahusen,  LL.D. ;  J. 
Wertheim,  LL.D. 

Biilfjium. — Theodore  J.  Engels ;  Edward  van  Peborgh. 

Maine  {State  of). — ).  11.  Bradford. 

New  Yorlc  (do). — Hon.  Judge  Marvin. 

Bremen. — Edward  Crusemann,  LL.D. 

Ifamhui'fj  and  Luheck. — Charles  II.  11.  I'rnnck,  LL.D. 

Ewjland. — II.  J.  Atkinson,  Hull;  li.  Iv.  i^aily,  Liverpool; 
E.  Temperlcy  Gourley,  Siunlcrl.ind  ;  U.  M.  Hudson,  Sun- 
derland ;  W.  T.  Jacob,  Liverpool  ;  W.  J.  Lamport,  Liver- 
pool ;    Richard  Lowndes,  Livei-pool ;  D.  W.   Mackeclmie, 


INTERNATIONAL   LAW   OF  GENERAL   AVERAGE.         2C9 

Glasgow ;    P.    H.    Rathboue,    Liverpool ;    E.    E.    Wendt, 

London. 
France. — Jules  Delaliaye. 
Portugal. — 

Russia. — G.  Kamensky. 
Denmark. — S.  Gram  ;  Jacques  Suenson  ;  Edward  Thune. 

8.  That  the  representative  or  representatives  of  each  country 
or  place,  as  named  above,  shall  charge  himself  or  themselves  with 
the  task  of  organising  an  association  or  committee  for  such  place, 
or  taking  such  other  measures  as  in  his  judgment  shall  be  best 
conducive  to  the  carrying  out  of  the  purposes  laid  down  in  the 
foregoing  resolutions. 

9.  That  each  local  association,  organised  as  above,  or  the 
representative  himself  in  the  absence  of  an  association,  shall  make 
an  annual  report  to  the  council  for  the  time  being  of  the  Social 
Science  Association,  setting  forth  what  progress  shall  have  been 
made  in  his  or  their  district ;  and  that  such  annual  reports  shall 
be  continued  until  the  task  assigned  to  such  local  association  or 
representative  shall  have  been  completely  accomplished. 

10.  That  in  case  any  country  or  place,  not  here  represented, 
shall  hereafter  wish  to  join  in  this  movement,  the  council  for  the 
time  being  of  the  Social  Science  Association  shall  have  power  to 
appoint  a  representative  or  representatives  for  such  country  or 
place,  who  shall  then  have  equal  jDowers  with  the  representatives 
here  appointed. 

11.  That  the  cordial  thanks  of  this  congress  are  given  to  the 
National  Association  for  the  Promotion  of  Social  Science,  for  the 
very  valuable  services  which  the  Association  has  rendered  to  the 
congress. 

12.  That  the  objects  of  this  congress  having  been  attained, 
this  congress  and  the  '  International  General  Average  Committee ' 
be  now  dissolvcnl. 

A  vote  of  thanks  to  Mr.  Wendt  was  proposed  and  seconded, 
and  carried  unanimously,  wherewith  the  labours  of  the  congress 
terminated. 

The  general  interest  and  approval  with  Avhieli  the 
result  of  tliese  labours  "were  received   in  the   inerea utile 

1' 


no  MARITIME   LEGISLATION. 

and  imderwritiiig  circles  of  tlie  2)nncipal  centres  of  trade 
could  scarcely  have  been  better  proved  tlian  by  tlie  public 
discussions  which  followed  the  appearance  of  the  very 
able  reports  which  most  of  the  delegates  to  the  York 
Concrress  addressed  soon  after  their  return  to  their  re- 
spective  constituencies. 

But,  remarkable  enough,  neither  such  expressions 
of  approval,  nor  the  almost  annual  request  which  the 
Associated  Chambers  of  Commerce,  on  the  motion  of  the 
Hull  Chamber,  was  for  a  number  of  years  in  the  habit  of 
addressing  to  the  Board  of  Trade  in  order  to  obtain  im- 
perial legislation  on  the  basis  of  the  York  rules,  led  to  any 
practical  result,  and,  if  it  is  recollected  that  the  Foreign 
Office  not  only  formally  sanctioned,  but  actually  forwarded 
to  H.M.  Consular  Officers  abroad,  official  invitations  for 
such  commercial  or  underwriting  bodies  as  mio-ht  be 
established  within  their  district,  in  order  to  induce  them 
to  send  delegates  to  the  York  Congress,  it  is  not  easy  to 
understand  why  no  Government  action  was  taken  after 
the  result  of  deliberations  which  were  presided  over  by  no 
less  persons  than  the  Judge  of  the  Probate  Court  and  Sir 
Fitzroy  Kelly,  who  soon  after  became  Lord  Chief  Baron  of 
the  Court  of  Exchequer,  who  were  both  no  mean  autho- 
rities on  the  subject  under  consideration. 

In  this  unsatisfactory  state  the  question  rested  for 
more  than  ten  years,  till,  at  the  third  annual  Congress  of 
the  Association  for  the  Reform  and  Codification  of  the  Law 
of  Nations  at  the  Hague  in  1875,  one  of  its  members 
drew  nllciilioii  lo  tlic  dcsii-nhilily  of  considci-ing  the  laws 
(»r  dciicr.'il  Ax'ci'.'igf'. 

Tlic  Ibiirlli  :imiii;il  icpoit  of  llic  saiiie  Association's 
conrci-ciicc,  held  ;it  l>iciiicii,  st;ilcs  tlinl  on  Tuesday, 
ScptciulxM-  20,  187(»,  tlic  siihjcci  upon  llic  oi'dcr  of  the 
(l;i\'  \v;is  ^  IciK'i'.'il   .\\cr;iL!'<'. 


I>sTEllNATIONAL   LAW   OF   GENEIUL   AVERAGE.         L'l  I 

Mu.  'riiEODoitE  Hacii,  of  Bremen,  in  a  comprehensive  paper, 
after  giving  an  account  of  the  Congresses  of  Glasgow  (18G0), 
presided  over  by  ijord  Brougham,  London  (18G2),  presided  over 
by  Sir  Truvers  Twiss,  and  York  (18Gi),  presided  over  by  the  Lord 
Cliief  Baron  of  tlie  Court  of  Excliequer  of  England,  Sir  Fitzroy 
Kelly,  and  alluding  to  the  difficulties  presented  by  inveterate 
practice  and  long-established  custom,  maintained  tliat  the  Associa- 
tion ought  not  as  yet  to  attempt  to  draft  a  complete  code,  but 
should  agree  to  the  following  three  prepositions  : — 

1 .  That  such  a  code  is  required. 

2.  That  the  principles  asserted  in  it  are  right  and  generally 
recognised. 

o.  'J'hat  the  code  is  practicable. 

He  then  entered  into  details  as  to  the  principles  which  he  con- 
sidered the  true  ones  and  moved  the  following  resolutions : — 

L  The  fundamental  principle  of  General  Average  is  clearly 
and  tersely  expressed  by  the  following  words  in  the  German 
General  Mercantile  Law :  '  All  damage  done  to  ship,  or  cargo,  or 
both,  by  the  master,  or  by  order  of  the  master,  with  the  object  of 
saving  both  from  a  common  danger,  and  all  consequential  damage 
resulting  therefrom,  and  the  expenses  incurred  thereby,  are  General 
Average ;  and  General  Average  is  borne  by  ship,  cargo,  and 
freight.' 

2  The  following  are  corollaries  to  this  principle : — 
((f)  A  temporary  separation  of  ship  and  cargo  during  the 
voyage  in  consequence  of  circumstances  inducing  General 
Average  docs  not  terminate  or  suspend  their  common 
liability  to  General  Average. 
(//)  Such  damage  only  is  to  be  deemed  consequential  as  is 
caused  by  the  original  damtige,  not  such  as  only  follows 
accidentally. 

3.  This  is  the  basis  upon  which  an  International  Law  of  General 
Average  ought  to  be  founded  ;  but,  as  there  is  no  prospect  of  this 
object  ever  being  attained  without  the  initiative  of  the  different 
(lovernments  and  Legislatures,  the  first  efforts  of  the  Association 
should  be  directed  towards  influencing  those  bodies. 

I.   .V   pcculiarlv  suitable  gi'oundwork  for  the  discussion  of  such 


212  MARITIME    LEGISLATION. 

a  law  is  to  be  foand  in  that  portion  of  the  German  General  Mer- 
cantile Law  which  deals  with  General  and  Particular  Average. 
Further  valuable  materials  are  contained  in  the  reports  of  the  three 
International  General  Average  Congresses  which  have  been  held 
in  England. 

5.  Provisionally,  in  order  to  obviate,  as  much  as  possible,  the 
evil  effects  of  the  existing  discrepancies  in  the  laws  of  General 
Average,  it  is  desirable  that  average  statements  made  at  the  port 
of  destination  of  a  ship  with  the  proper  formalities  and  in  accord- 
ance with  the  laws  there  obtaining  should  be  everywhere  recognised 
by  insurers  as  binding. 

6.  That  a  committee  be  appointed  by  this  meeting  for  the 
purpose  of  organising  and  keeping  on  foot  the  agitation  necessary 
to  give  effect  to  Nos.  3  and  5  of  these  resolutions. 

Mr.  J.  P.  Schneider,  of  Bremen,  followed  with  a  paper  upon 
General  Average,  in  which  he  endeavoured  to  show  that  General 
Average  rested  entirely  upon  the  principle  of  voluntary  sacrifice. 
He  went  on  to  remark  that  it  had  long  been  the  wish  of  the  mer- 
chants and  insurers  of  all  maritime  nations  to  see  the  laws  of  General 
Average  assimilated,  since  the  contributions  to  General  Average 
were  regulated  by  the  laws  of  the  country  in  which  ship  and  cargo 
parted  company,  and  very  often  had  to  be  paid  in  different  coun- 
tries. The  assimilation  of  the  laws  of  Insurance  was  of  less  import- 
ance, since  it  was  left  to  the  choice  of  the  insurer  whether  he  would 
extend  his  insurance  to  foreign  property  and  foreign  countries ;  but 
that,  too,  was  very  desirable,  since  it  constantly  happened  that 
insui'er  and  insured  belonged  to  different  countries.  The  following, 
he  said,  were  the  principal  points  which  called  for  reform  :  — 

1.  Exjyenses  of  the  shi}^  during  its  detention  by  Governments  and 
otJter  higher  poioers. — By  the  laws  of  some  countries  these  expenses 
were  apportioned  as  General  Average.  In  the  speaker's  opinion  it 
was  wrong  to  assume  lh;it  the  expenses  caused  by  the  detention  of 
ships  carrying  cargo  always  fell  upon  one  party.  A^ery  frequently, 
when  the  cargo,  by  reason  of  \]w  enforced  detention,  arrived  too 
late  for  the  market  which  was  contemplated  when  it  was  shipped, 
the  owner  of  the  cargo  siillircd  a  L''i'e,ilei'  loss  tlimi  the  shipowner, 
since  :i    l:ill    in    in'iees  could    not   l;e    insured  ;igainst.  whereiis   the 


INTERNATIONAL   LAW   OF  GENERAL   AVERAGE.        213 

shipowner  could  protect  liiinsi-lf  to  any  extent  he  pleased.  Each 
party  on<,'ht,  therefore,  to  bi-ar  liis  own  loss  when  a  ship  was  forcibly 
detained. 

2.  Expenscii  in  ports  of  refmjc.  —  The  above  remarks  were 
likewise  applicable  to  port  dues  and  wages  and  cost  of  main- 
tenance of  the  crew  when  the  ship  was  obliged  to  put  into  port 
on  account  of  Particular  Average  or  to  procure  necessaries  for  the 
voyage.  If  the  expenses  were  apportioned  as  General  Average,  the 
insurer,  who  contracted  to  indemnify  the  shipowner  against  all 
losses,  was  released.  When  the  cargo  had  to  be  landed  for  repairs, 
the  expenses  of  landing  and  reloading  the  cargo  ought  to  be  borne 
by  its  owner,  since  the  cargo  ought  not  to  stand  in  the  way  of  the 
shipowner  who  was  ready  to  do  his  duty. 

3.  Damage  done  by  collision. — If,  in  a  collision,  the  master  of 
neither  ship  could  be  shown  to  be  at  fault,  it  seemed  just  that  each 
should  bear  his  own  damage  ;  if  one  only  was  at  fault,  he,  of  course, 
must  alone  be  answerable ;  if  both,  neither  ought  to  be  able  to 
claim  compensation  from  the  other.  This  w^as  recognised  by  the 
German  law,  which  was,  however,  silent  as  to  the  claims  of  the 
owners  of  cargo  for  damages  in  respect  of  collisions.  In  the 
speaker's  opinion,  the  owners  of  cargo  ought  to  look  to  the  master 
only,  to  w^hom  they  had  entrusted  tlieir  goods,  and  the  German 
Supreme  Court  for  Mercantile  Cases  was  wrong  when,  in  a  recent 
case,  it  decided  in  favour  of  the  opposite  view. 

After  further  expressions  of  opinion  from  Sir  Travers  Twiss, 
Mr.  0.  SjOstrom,  of  Bremen,  and  others,  Mr.  H.  H.  Meier,  at  the 
conclusion  of  some  remarks  whicli  he  offered,  moved,  and  it  was 
resolved : — 

'That  a  committee  be  appointed  to  consider  the  subject  of 
General  Average;  and  that  Mr.  Hach's  resolutions  and  Mr. 
Schneider's  paper  be  referred  to  that  committee.' 

The  same  report  further  mentions  tliat  on  Thursday, 
September  26,  187G,  the  conference  proceeded  to  the 
nomination  of  committees,  and  the  following  elections 
took  place  : — Committee  upon  International  General  Aver- 
age Law :  Sir  Travers  Twiss  {Chairman),  Dr.  A.  Hinden- 


214  MARITIME   LEGISLATION. 

burg,  of  Copenhagen,  and  Messrs.  E.  E.  Wendt,  J. 
Wertheim,  of  Amsterdam,  H.  Tli.  Hack,  and  D.  Murray. 
Secretaries :  Mr.  H.  D.  Jencken  and  Mr.  E.  S.  Tredgold, 
of  London. 

This  committee  was  during  the  following  months  con- 
siderably strengthened  by  the  addition  of  most  of  the 
gentlemen  who  had  in  previous  years  evinced  an  interest 
on  the  subject,  and,  as  soon  as  a  decision  was  arrived  at 
to  meet  in  the  autumn  of  1877  in  Antwerp  for  the  pur- 
pose of  trying  seriously  again  to  agree  upon  International 
General  Average  Eules,  the  committee  used  its  best 
endeavours  to  secure  a  large  attendance  on  that  occasion, 
so  that  when,  on  Thursday,  August  30,  1877,  the  meeting 
of  those  interested  in  the  subject  took  place  in  the  Town 
Hall  of  Antwerp,  not  less  than  sixty-eight  gentlemen  had 
assembled  either  as  delegates  of  the  most  important  mer- 
cantile and  underwriting  institutions  in  the  world,  or  as 
on  their  personal  account  connected  with  the  discussion. 

SiK  Travers  Twiss,  being  in  the  chair,  called  ujDon  me 
to  open  the  proceedings  by  delivering  my  address,  which 
I  did  in  the  following  words  : — • 

The  executive  council  of  the  Association  having,  since  the 
Hague  Congress  in  1875,  considered  the  subject  of  the  laws  of 
Cieneral  Average  worthy  of  its  attention,  the  discussion  which  took 
])lace  at  last  year's  Bremen  Congress  on  the  matter  k'd  not  only 
to  the  appointment  of  a  standing  committee  on  General  Average 
at  the  headquarters  of  the  Association,  but  to  the  formation  of 
several  local  connuittees  in  different  parts  of  the  world. 

As  the  result  of  the  united  exertions  of  the  members  of  tht'se 
coiiimittces  the  assembly  licrc  prcsciif  may  be  taken,  and,  1  am 
sure,  we  all  sincerely  hope  not  only  that  a  practical  international 
law  of  (Jeneral  Average  may  result  out  of  our  discussions,  but  that, 
•.\\'\ry  it  has  been  agi'eed  upon,  llie  (lovcrnments  wliosc  flags  are 
|)riiicijtallv  inleresled  in    the   (iiicslions   here   to   lie  considered  may 


INTERNATIONA!.    LAW   OF   GF.NIP.AL    AVERAGE.         215 

tuko  tlie  necessary  steps  in  order  to  secure  its  enactment  by  the 
different  Legislatures, 

For  although  the  executive  council  is  well  aware  that  if  the 
princi|)al  sliipo\vners,  merchants,  and  their  respective  underwriters 
agree  among  themselves  as  to  the  principles  upon  which,  in  their 
joint  maritime  adventures,  questions  of  General  Average  are  to  bo 
treated,  suc-h  agreements  would  be  of  legal  force,  but  as  they  must 
be  renewed  for  each  maritime  adventure  separately,  in  a  binding 
form,  between  the  parties  to  it,  the  more  convenient  course  would 
be  to  obtain  their  enactment  at  law  by  the  authority  of  the  different 
Governments,  and  some  of  them  having  evinced  a  not  inconsiderable 
interest  on  the  subject,  we  may  hope  that  no  insurmountable 
obstacles  would  be  in  the  way  to  attain  this  desirable  end  in  a 
reasonable  time. 

The  transactions  of  the  first  International  General  Average 
Congress  at  Glasgow  18G0,  or  the  second  at  London  18G2,  and  of 
the  third  at  York  186  i,  being  unfortunately  out  of  print,  reference 
as  to  the  history  of  the  previous  endeavours  to  obtain  uniformity 
in  the  international  law  of  General  Average  must  here  be  made  to 
the  well-known  work  of  our  friend  Mr.  Richard  Lowndes,  '  The 
Law  of  General  Average,'  second  edition,  and  to  the  second  edition 
of  my  '  Papers  on  Maritime  Legislation.' 

There  it  will  likewise  be  found  recorded  that,  in  spite  of  re- 
peated attempts  made  by  the  Associated  Chambers  of  Commerce 
to  prevail  upon  Her  Britannic  Majesty's  Government  to  make  the 
rules  which  were  passed  at  the  last  congress  in  York  (18G4)  a 
subject  of  imperial  legislation,  nothing  has  been  done  ;  and  as  the 
manner  in  which  these  so-called  '  York  Eules '  were  generally 
received,  and  have  been  reviewed  by  competent  authority,  has 
convinced  the  executive  council  that  no  better  starting-point  for 
discussion  could  be  offered,  it  was  decided  to  invite  you  to  enter 
seriathn  into  the  discussion  of  their  different  clauses. 

But  before  you  do  so,  let  me  allude  to  the  reports  which  have 
been  presented  by  the  local  committees  of  Bremen,  Gothenburg, 
and  Philadelphia. 

The  former  document  suggests  the  desirability  of  taking  the 
well-known  clauses  of  the  German  maritime  law  as  a  starting-point 


216  MARITIME   LEGISLATION. 

for  our  deliberations,  but  keeping  in  view  that  the  York  rules  are 
a  compromise  between  the  parties  who  considered  the  '  common 
safetv  '  principle  as  sufficient  for  a  basis  of  the  international  General 
Averao-e  law,  and  those  who  insisted  upon  nothing  less  than  that 
the  common  henefii  of  the  maritime  adventure  should  be  the  guid- 
ing principle  of  it — the  Bremen  committee  discusses  the  York 
rules  very  fully,  and  submits  in  what  form  they  should  be  amended 
in  order  to  be  brought  into  conformity  with  the  German  maritime 
law. 

And,  bearing  in  mind  that  the  executive  council,  or  rather 
those  of  its  members  upon  whom  the  management  of  the  affairs  of 
all  matters  relating  to  General  Average  have  devolved,  owe  an 
expression  of  opinion  to  their  Bremen  friends  as  an  acknowledg- 
ment of  the  trouble  they  have  kindly  undertaken  in  the  joint 
cause,  I  think  it  my  duty  on  this  occasion  to  make  the  following 
observations : — 

As  far  as  I  recollect,  there  were  certainly  two  reasons  for  the 
York  Congress  in  not  following  the  German  law,  and  in  omitting 
to  place  at  the  head  of  the  York  rules  the  definition  of  what  is 
meant  by  a  General  Average  act.  The  first  was,  that  it  was  not 
easy  to  embrace  in  a  few  sentences  all  that  it  would  have  been 
considered  necessary  to  express  under  this  head  ;  and  the  second  was, 
that  none  of  the  definitions  hitherto  either  enacted  in  foreign  laws, 
or  contained  in  the  well-known  authorities,  did  meet  with  general 
approval . 

And  the  executive  council  will  be  glad  to  have  your  opinion 
whether  you  see  any  objection  to  our  acceding  to  this  part  of  the 
Bremen  proposal  and  putting  at  the  head  of  the  international 
General  Average  Act  law  the  combined  Arts.  702  and  705  of  the 
German  law,  which  would  then  run  as  follows  : — 

'  AH  damage  done  to  ship  or  cargo,  or  both,  by  the  master  or 
by  his  orders,  with  intent  to  save  both  from  a  common  danger, 
as  also  the  consequential  damages  resulting  therefrom,  and  the 
expenses  incurred  for  the  sanie  purpose,  are  General  Average. 

'  General  Average  is  borne  by  ship,  freight,  and  cargo  in 
common. 

'  Average  dist  iil>iil  inn  tukfs   place  only  when   shi]i  as  well   as 


INTERNATIONAL  LAW  OF  GENERAL   AVERAGE.        217 

cargo,  and  both,  either  altogether  or  in  part,  have  really  been 
saved,' 

The  proposals  then  following,  viz.  :  To  make  enactments :  as 
to  how  the  values  are  to  be  ascertained  of  any  sacrifices  made  for 
the  common  benefit ;  how  the  contributory  values  are  to  be  taken  ; 
whether  the  rights  of  claimants  for  General  Average  sacrifices  are 
to  be  secured  in  any  particular  manner ;  and  how  the  contributions 
to  General  Average  are  to  be  guaranteed — nay,  if  you  think  fit,  be 
settled  according  to  the  usages  of  the  port  where  the  average 
statement  is  to  be  made  up,  as  they  hardly  involve  any  question  of 
principle. 

But  I  think  you  will  concur  that  with  great  propriety  the  port 
of  destination,  or  the  place  where,  in  consequence  of  a  General 
Averaofe  act,  the  maritime  adventure  is  terminated,  could  be  fixed 
upon  as  the  place  for  the  adjustment  of  the  General  Average,  pro- 
vided the  parties  interested  do  not  agree  upon  any  other  course. 

Such  proviso  has  become  the  more  necessary,  as  in  some 
Eastern  parts  of  the  globe  the  custom  of  charging  enormous  com- 
missions for  making  adjustments  has  lately  induced  the  parties 
ultimately  liable  for  General  Average  contributions  to  insist  upon 
their  being  drawn  up  in  some  other  j^lace  than  the  port  of  destina- 
tion, and  subject  to  this  proviso,  the  Bremen  proposal  is  recom- 
mended to  the  favourable  consideration  of  the  congress. 

A  reference  to  the  report  of  the  Bremen  delegate  to  the  York 
Congress,  our  late  lamented  friend  Crusemann,  would  have  convinced 
the  Bremen  committee  that  upon  the  consideration  of  no  other 
part  of  the  York  rules  more  time  was  spent  than  upon  the  rules 
VII.  (port  of  refuge  expenses)  and  VIII.  (wages  and  maintenance 
of  crew  in  port  of  refuge),  and  it  remains  to  be  seen  whether  the 
discussions  which  must  here  take  place  on  these  most  important 
subjects  will  lead  to  a  more  satisfactory  working  of  these  two 
rules. 

But  there  is  one  observation  in  this  part  of  the  Bremen  report 
which  calls  for  a  remark. 

The  most  flagrant  cases  of  leaving  part  of  the  cargo  behind  in 
ports  of  distress  have  occurred  not — as  here  suggested — because 
the  ship  was  overloaded  from  the  beginning,  but  in  consequence  of 


218  MARTTIME  LEGISLATION. 

cottou  having  been  screwed  into  the  ship's  hohl  in  conformity  with 
the  usages  of  the  original  port  of  loading,  and  from  inal^ility  in 
the  port  of  distress  to  restow  it  in  the  same  manner. 

The  suggestion  in  the  Bremen  report  that  only  the  value  of 
the  repairs  as  estimated  at  the  end  of  the  voyage  shall  be  deducted 
in  order  to  arrive  at  the  contributory  value  of  the  ship,  may  at 
first  sight  recommend  itself  to  the  favourable  consideration  of  the 
meeting,  but  so  many  practical  difficulties  may  be  expected  from 
the  adoption  of  this  suggestion  that  I  am  inclined  to  think  this 
meeting  will  not  recommend  any  alteration  of  the  tenth  rule. 

Under  the  heading  of  '  Articles  which  might  eventually  be 
used  as  a  compromise  to  English  views ' — under  which  term  the 
York  rules  are  apparently  mentioned — the  Bremen  report  consents 
to  the  wording  of  Rule  V.  (voluntary  stranding),  but  suggests  the 
propriety  of  enacting  that  damage  done  by  defending  a  ship  against 
enemies  or  pirates,  and  the  expense  of  ransoming  a  ship  after  cap- 
ture by  enemies  or  pirates,  should  be  made  good  in  General  Average 
— to  which  scarcely  any  objection  can  be  raised.  The  same  will 
be  found  with  respect  to  their  proposal  to  add  to  Rule  I.  (jettison 
of  deck  cargo)  :  '  Provided  that  this  rule  applies  only  to  such 
vessels  as  are  expressly  constructed  and  fitted  up  for  suth  trade  in 
such  a  way  that  the  deck  cargo  does  not  cause  any  extraordinary 
risk  to  the  navigation.' 

The  further  suggestions  under  this  head,  namely,  (a)  that  the 
contributory  value  of  freight  should  not  be  reduced  to  less  than 
one-half  of  the  gross  freight ;  (Ij)  that  any  loss  arising  to  cargo- 
owners  out  of  the  shipowner's  inability  to  provide  for  his  share  to 
a  bottomry  bond  should  be  rateably  distributed  among  them  ;  and 
(c)  that  in  case  of  detention  hj  force  majeure  the  crew's  wages  and 
provisions  should  be  dealt  with  as  General  Average,  will  undoubtedly 
give  rise  to  some  interesting  discussions,  so  that  I  need  not  do  any 
more  in  tliis  place  (liaii  call  attention  to  them. 

T  come  now  to  IIk;  recommendation  in  the  Bremen  report  to 
reconsider  tlie  fourth  rule  (cutting  away  wreck),  and  I  beg  to 
express  t])e  liope.  Ili;it  this  i-ecomnieiidal  ion  will  not  be  insisted 
upon,  for  tliis  rule  was  passed  in  conformity  witji  the  well-known 
dictum    of  one   of  onr   most  celebrated    Judges,    tlint   the   cutting 


INTERNATIONAL  LAW   OF  GENERAL   AVERAGE.        219 

away  of  tliat  which,  being  in  a  state  in  which  it  cannot  be  saved, 
is  already  virtually  lost,  and  moreover  encumbering  the  navigation 
of  the  vessel,  is  therefore  not  such  a  sacrifice  as  to  give  a  title  to 
contribution. 

The  report  of  the  Swedish  committee  draws  very  prominently 
our  attention  to  the  enactment  in  their  law  that  no  jettison  of 
deckload  is  allowed  in  General  Average,  unless  effected  in  order 
to  lighten  the  vessel  when  aground  ;  and  if  we  take  into  considera- 
tion that  this  law  is  in  existence  in  one  of  the  countries  which  have 
most  of  the  vessels  trading  under  their  flag  which  are  especially 
built  and  fitted  for  carrying  large  deckloads,  the  principle  here  laid 
down  is  undoubtedly  worthy  of  our  most  serious  consideration. 

The  further  suggestion  that  in  case  the  voyage  ends  in  a  port 
of  refuge  no  other  expenses  but  those  for  entering  the  port,  and 
for  the  maintenance  of  the  crew  till  such  resolution  is  arrived  at, 
are  allowable  in  General  Average,  appears  self  evident,  and  not 
requiring  a  special  enactment. 

The  final  suggestions  in  the  Swedish  report  relating  to  the 
contributory  values  of  ship,  cargo,  and  freight  will  undoubtedly 
have  the  full  consideration  of  the  meeting,  especially  so  far  as  it  re- 
lates to  the  observation  that  the  valuations  of  vessels  are  generally 
put  lower  than  they  ought  to  be,  a  calamity  which,  according  to 
my  own  experience,  can  only  be  rectified  by  insisting  in  valuations 
made  by  appraisers  who  are  not  only  competent,  but  sworn  to  be 
impartial. 

The  report  of  the  Philadelphia  committee,  or  rather  the  report 
of  the  committee  on  Adjustments  of  the  Board  of  Marine  Under- 
Avriters  in  that  city,  and  addressed  to  the  said  Board,  opposes  the 
first  rule  (jettison  of  deck  cargo)  altogether,  because  deck  cargo 
interferes — in  their  opinion — with  the  navigating  and  general 
management  of  the  ship,  endangering  the  safety  of  the  cargo 
under  deck,  and  because  the  act  of  jettison  alone  secures  the  earn- 
ing of  freight  by  the  shipowner. 

The  report  approves  of  Rules  II.  (damage  by  jettison),  III. 
(extinguishing  fire  on  shipboard),  IV.  (cutting  away  wreck),  Y. 
(voluntary  stranding),  VI.  (carrying  press  of  sail)  entirely,  but 
suggests  to  llule  VII.  (port  of  refuge  expenses)   that  as  any  por- 


220  MARITIME   LEGISLATION. 

tions  of  cargo  wliicli  may  liave  been  left  beliiuJ  in  a  port  of  refuge 
liave  equally  benefited  with  the  rest  by  putting  into  port  of  refuge, 
they  should  not  be  exenipted  from  contribution  to  General  Average, 
and  further  suggests  to  Rule  VIII.  (wages  and  maintenance  of 
crew  in  port  of  refuge)  that  such  allowance  should  not  only  be 
made  from  the  date  of  entering  the  port  of  refuge,  but  from  the 
bearing  away  for  that  port,  repeating  at  the  same  time  the  objection 
raised  under  the  previous  rule  with  respect  to  the  exemption  of 
cargo  left  at  port  of  refuge  from  General  Average. 

Rule  IX.  (damage  to  cargo  in  discharging)  is  opposed  because 
of  the  inability  to  see  any  difference  in  the  method  of  discharging 
under  the  master's  discretion. 

The  Rules  X.  and  XI.  (contributory  values)  are  approved  of, 
but  an  addition  is  suggested  to  the  former — that  even  in  the  event 
of  loss  after  departure  from  a  port  of  refuge  an  apportionment  in 
General  Average  of  all  expenses,  with  the  exception  of  the  wages 
and  maintenance  of  the  crew,  should  take  place;  a  proposition 
which  is  not  likely  to  obtain  the  assent  of  this  meeting. 

My  reason  for  thus  going  more  fully  into  the  arguments  upon 
which  the  resolutions  of  the  Philadelphia  report  as  stated  are  based 
is,  that  our  friends  there  are  not  represented  among  us  by  a  special 
delegate,  whereas  we  have  the  satisfaction  of  seeing  in  this  meeting 
delegates  from  Bremen  and  from  Gothenburg,  who,  I  am  sure,  will 
take  care  that  their  views  shall  be  properly  pressed  upon  the  meeting. 
Before  concluding,  I  ought  to  mention  that  the  Executive  Council 
has  to  thank  Mr.  Joh.  Phil.  Schneider,  of  Bremen,  for  the  '  Rules 
fur  the  adjustment  of  claims  for  General  Average,  and  for  averages 
from  collision  proposed  for  universal  adoption  ; '  but  as  the  York 
rules  had  been  previously  suggested  as  a  basis  for  our  deliberations, 
the  executive  could  not  do  more  than  circulate  Mr.  Schneider's 
rules  and  sul)iiiit  to  the  meeting,  to  consider  how  much  of  tliem 
could  be  used  for  the  improvement  of  the  York  rules. 

^fay  our  deliberations  lead  to  a  successful  issue  of  an  inter- 
national General  Average  law! 

TiikCiiaik.man  tlic!nsii<f^^a;8UMl  tli;il  llic  Yoi'k  i-iilcsslioiikl 
be  tiikcii   as  a  basis  of  discussion,  but    bcilbrc  the  sense  of 


INTERNATIONAL   L.VW   OF   GENERAL   AVERAGE.         221 

the  meeting  thereupon  could  be  ascertamed,  Mr.  F.  B.  13. 
Natusch  (oue  of  the  delegates  from  Lloyd's)  rose  and 
handed  in  the  following  letter  : — • 

To  the  Chairman  of  the  Meeting  of  the  Association  for  the  Tlifonn 
and  Codification  of  the  Law  of  Nations. 

Average  Law  Department. 

Lloyd's :  August  1877. 

Sir, — The  Association  for  the  Reform  and  Codification  of  the 
Law  of  Nations  having  invited  the  committee  of  Lloyd's  to  send 
representatives  to  the  meeting  at  Antwerp,  where  the  question  of 
General  Average  is  to  be  tlie  subject  of  discussion,  IMessrs.  F.  B. 
B.  Natusch  and  Joseph  Hillman  have  been  appointed  by  the  com- 
mittee as  a  deputation  to  represent  them  on  that  occasion,  with 
Captain  Henry  Montague  Hozier,  the  secretary  of  Lloyd's. 

At  the  same  time  the  committee  think  it  right  to  place  before 
the  Association  their  views  upon  the  subject,  and  the  views  which 
those  who  represent  them  will  support. 

There  is  a  strong  feeling  in  this  committee  that  the  differences 
which  exist  in  various  countries  upon  this  subject  would  be  best 
met  by  abolishing  General  Average  altogether.  Possibly  this  can- 
not now  be  done ;  and,  if  so,  the  committee  consider  that,  so  far  as 
English  practice  is  concerned,  any  difference  should  be  met  by 
curtailing,  not  by  enlarging,  the  English  rules. 

The  sacrifice  of  a  part  to  avoid  an  impending  peril  w\as  the 
foundation  of  General  Average,  and  was  the  very  essence  of  any 
claim.  This  ingredient  should  still  form  the  basis  of  any  claim, 
and  without  this  basis  the  new  element  of  common  benefit  should 
not  be  allowed  to  have  any  place. 

From  the  fact  that  the  York  rules  are  to  be  adopted  as  a  basis 
for  discussion,  it  is  clear  that  no  return  to  first  principles  can  be 
expected  from  the  Antwerp  meeting,  for  in  the  opinion  of  the 
committee  those  rules  extend  considerably,  both  in  principle  and 
amount,  the  area  in  which  General  Average  may  be  recovered,  and 
tJie  attempt  to  establish  uniformity  is  carried  out  solely  by  intro- 


222  MARITDIE   LEGISLATION. 

ducing  into  tlie  law  of  England  cases  of  General  Average  which, 
are  allowed  abroad,  but  not  in  England,  and  which  the  committee 
consider  most  objectionable. 

The  committee  think  it  right  to  bring  these  views  to  the 
attention  of  the  Association,  that  it  may  be  understood  they  are 
averse  to  any  proposal  for  assimilating  General  Average  which 
is  based  upon  extending  in  any  manner  the  English  law,  instead 
of  reducing,  both  in  principle  and  amount,  the  cases  in  which  it 
can  be  claimed. — I  have  the  honour  to  be.  Sir, 

Your  obedient  Servant, 
(Signed)  George  J.  Goschen, 

Chairman  of  Lloyd's . 

After  tlie  General  Secretary  had  read  the  letter  and 
the  emotion  caused  by  its  contents  had  a  little  subsided, 

Mr.  Ph.  H.  Rathbone  (Chairman  of  the  Liverpool  Board  of 
Underwriters)  stated  that  he  did  not  think  that  the  position  taken 
up  by  Lloyd's  corporation  was  in  any  way  justified ;  the  doctrine 
and  practice  of  General  Average  being  of  universal  application,  he 
could  not  admit  the  practicability  of  any  other  course  than  to 
discuss  any  amendments  which  might  be  suggested  for  the  im- 
provement of  the  York  rules. 

Mr.  John  Glover  (Ex-Chairman  of  the  General  Shipowners' 
Society  in  London)  thought  that,  in  order  to  simplify  the  proceed- 
ings, the  delegates  of  Lloyd's  should  be  desired  to  explain  the  reasons 
which  induced  that  body  to  send  a  letter  of  so  serious  a  character. 

Mr.  T.  HiLLMAN  (one  of  these  delegates)  thereupon  rose  and 
explained  that,  in  their  view.  General  Average  had  become  such  an 
unbearable  weight  to  commercial  transactions  that  it  would  be  for 
tlieir  benefit  if  it  could  be  altogether  abolished,  and  he  considered 
liinisclf  the  more  justified  to  urge  this  view  as  everyone  nowadays 
insured  cvcrvlhing,  so  that  the  underwritt-r  really  becomes  liable 
lor  wliatever  happened  on  the  voyage,  and  it  was  immaterial  to 
liira  whetlier  it  was  paid  in  the  shape  of  General  or  of  Particular 
Average,  or  whetlier  it  was  paid  as  expenses  for  the  ship  or  for 
the   cargo.      lie  also  ci-it icised  IVdiii  ;i  hkh'iiI  jidiiil  of  \'ie\v  tlie  very 


IXTEKNATIONAL   LAW   OF   GENERAL   AVERAGE.         223 

prevalent  tendency  to  speculate  on  the  admission  of  certain  items 
into  (ienenil  Average  and  the  prohability  of  causing  jettisons  l)y 
the  overloading  of  vessels.  He  alluded  further  to  the  great  delays 
and  the  heavy  expenses  which  were  caused  by  the  adjustment  of 
General  Averages.  He  wound  up  his  remarks  by  declaring  his 
conviction  that  the  evil  of  General  Average  was  not  a  necessary 
one,  and  that  the  policies  of  insurance  were  quite  sufficient  to 
settle  the  different  questions  arising  under  this  head. 

Mr.  Lawrence  II.  Baily  (Representative  of  the  Steam  Ship- 
owners' Association  of  Liverpool)  observed  that,  although  he  might 
concede  the  correctness  of  the  facts  as  stated  by  Mr.  Hillman,  he 
could  not  agree  that  the  arguments  brought  forward  by  that  gentle- 
man, and  which  principally  concerned  England,  could  have  any 
influence  in  considering  the  question  whether  it  Avas  advisable  to 
frame  '  International  General  Average  Rules.'  He  did  not  believe 
it  possible  to  abolish  General  Average  altogether,  and  in  defending 
his  point  of  view  he  gave  an  example  respecting  the  expenses  in 
a  port  of  refuge. 

Dr.  E.  N.  Rahusen  (Delegate  of  the  Netherland  Handels  Maat- 
schappij  and  the  Shipowners'  Association  of  Amsterdam)  expressed 
his  belief  that  the  General  Average  customs  would  last  longer  than 
Lloyd's  itself.  He  remarked  that  Mr.  Hillman's  allusion  to  jettisons 
caused  by  the  overloading  of  vessels  was  inopportune,  as  in  such 
cases  no  claim  for  General  Average  could  be  substantiated.  He 
mentioned  some  other  cases  in  which  allowances  in  General 
Average  would  not  take  place.  With  respect  to  the  long  delays, 
he  observed  that  they  arose  not  in  making  the  apportionment,  but 
in  examining  the  facts  which  had  given  rise  to  the  case  and  in 
collecting  the  documents  from  the  different  parties  interested.  It 
was,  moreover,  not  exact,  certainly  with  regard  to  Holland,  to  say 
that  all  property  was  generally  insured,  and  therefore  the  institu- 
tion of  General  Average  could  not  possibly  be  done  away  witli. 

Mr.  Manley  Hopkins  stated  that,  although  he  and  two  of  his 
colleagues  (who  had  unfortunately  been  prevented  from  appearing) 
liad  been  delegated  to  attend  this  meeting  by  the  Average  Adjus- 
ters' Association  in  London,  he  had  to  reserve  to  his  clients  the 
]xnver  to  ratify  or  not  to  ratify  the  result  of  the  deliberations  at 


224  MARITIxAlE   LEGISLATIOX. 

which  this  meeting  would  ultimately  arrive.  He  was  well  aware 
that  International  Conventions  could  only  arrive  at  results  by 
mutual  concessions  of  its  delegates,  who  must  have  been  instructed 
how  far  to  go,  and  he  was  therefore  highly  interested  as  to  the 
results  he  would  be  able  to  report  to  his  colleagues. 

Mr.  H.  H.  Meier  (President  of  the  North  German  Lloyd  of 
Bremen)  was  of  opinion  that  the  meeting  should  pass  over  the 
letter  of  Lloyd's  to  the  order  of  the  day  as  indicated  by  the  Presi- 
dent, viz.  discuss  the  York  rules  and  the  concessions  which  could 
be  made  in  order  to  arrive  at  distinct  rules. 

Mr.  John  Glover  (Ex-Chairman  of  the  General  Shipowners' 
Society  in  London)  did  not  concur  in  the  extreme  view  the 
committee  of  Lloyd's  intended  to  take  upon  this  question,  but 
suggested  that  the  reasons  given  in  the  communication  now  under 
consideration  should  be  used  for  the  purpose  of  reducing  not  only 
the  expenses,  but  also  the  items  to  be  qualified  as  admissible  in 
General  Average  as  much  as  possible. 

After  a  very  lively  discussion  as  to  the  future  course  of  pro- 
ceeding, in  which  the  President,  Sir  Travers  Twiss,  suggested 
that  Mr.  Goschen's  letter  should  be  entered  on  the  minutes,  Mr. 
Natusch  wished  it  to  be  understood  that  the  committee  of 
Lloyd's  had  only  in  view  the  prevention  of  the  future  development 
of  the  present  system  of  General  Average.  Mr.  Lowndes  mentioned 
that,  as  Lloyd's,  by  sending  three  delegates  to  this  meeting,  had 
a  perfect  right  to  express  their  opinion,  the  passing  to  the  order 
of  the  day  was  not  intended  to  show  any  hostile  feeling  towards 
Lloyd's  ;  whereupon  it  was  unanimously  resolved  '  That  the  said 
letter  should  be  entered  on  the  minutes  of  the  conference.' 

The  discussion  on  the  letter  from  Lloyd's  having  thereby  termi- 
nated, Mr.  H.  H.  Meier  formally  proposed :  '  That  the  York  rules 
should  be  taken  as  a  basis  of  discussion  for  this  meeting.'  This 
resolution  was  almost  immediately  adopted,  after  liaving  been 
seconded  I)y  Mit.  R.  Lowndes,  of  tlu^  Liverpool  Chamber  of  Com- 
merce. 'J'liis  latter  gent  Icninii  (licii  procrcdcd  to  analyse  and  dis- 
cuss iIm-  iiicaniii!/  ol'tlir  lirst  York  rule,  wliich  runs  as  follows:  — 

JtiJLK  1.  Jclti.^o/i  nf  Ih'cJ:  (\ir<i(). — A  jettison  of  timber  ordeals, 
or  any  other  description  of  wood  cargo,  carried   on  the  deck  of  a 


\ 


INTERNATIONAL   LAW    OF   GENERAL   AVERAGE.         2i>-) 

slii|)  in  pursuance  of  a  general  custom  of  tlie  trade  in  wliicli  the 
sliip  is  then  engaged,  shall  be  made  good  as  General  Average  in 
like  manner  as  if  such  cargo  had  been  jettisoned  from  below  deck. 

'  No  jettison  of  deck  cargo  other  than  timber  or  deals,  or  other 
wood  cargo,  so  carried  as  aforesaid,  sliall  be  made  good  as  General 
Average. 

'  Every  structure  not  built  in  with  the  frame  of  the  vessel  shall 
be  considered  to  be  a  part  of  the  deck  of  the  vessel.' 

Mil.  Lowndes  advocated  the  adoption  of  this  rule.  Dii.  Rahusent, 
of  Amsterdam,  and  Mr.  Winge,  of  Christiania,  together  with  some 
English  speakers,  having  taken  part  in  the  debate  on  different  sides, 
Mr.  Meier,  of  Bremen,  remarked  that  he  reserved  to  himself  the 
right  to  move  an  amendment  in  the  event  of  Rule  I.,  which  he 
wished  neither  to  oppose  or  support,  being  adopted.  Mr.  Cupier, 
of  Newcastle,  Mr.  Hacii,  of  Bremen,  Mr.  Jacobsex,  of  Copen- 
hagen, and  Sir  Travers  Twiss,  President  of  the  General  Average 
Committee,  examined  from  various  points  of  view  the  principle  at 
the  bottom  of  the  rule  and  the  diverse  eventualities  which  might 
present  themselves.  Mr.  J.  Laxglois  agreed  with  the  opponents 
of  the  rule,  because  it  is  too  difficult  to  prove  what  portion  of  the 
deck  cargo  has  been  voluntarily  thrown  overboard  and  what  portion 
has  been  swept  away  by  the  sea. 

Mr.  Rathbone  then  moved  that  the  first  York  and  Antwerp 
Rule  should  run  thus  :  '  No  jettison  of  deck  cargo  shall  be  made 
good  as  General  Average.' 

Dr.  Rahusen  seconded  the  motion.  Mr.  Axel  Winge,  how- 
ever, proposed  as  an  amendment  the  addition  of  the  words  :  '  Ex- 
cept in  case  of  jettison  to  save  the  vessel.' 

This  amendment  was  seconded  by  Mr.  Jacobsex,  but  lost  by 
a  large  majority.  Mr.  Rathbone's  resolution  was  thereupon  sub- 
mitted to  the  meeting  and  carried  by  26  votes  to  10. 

The  meeting  of  the  committee  broke  up  at  six  o'clock,  adjourn- 
ing till  the  next  day  at  ten. 


On  August  31  the  sitting  was  resumed.  Sir  Travers  Twiss 
was  in  the  chair,  and  was  supported  by  Messrs.  E.  E.  Wendt, 
Meier,  Engels,  Peborgh  and  Rand  Baily,  the  Honorary  Secretary 

Q 


220  MARITIME   LEGISLATIOX. 

of  the  Antwerp  committee.  After  the  formal  business  had  been 
dismissed  and  Mr.  Rand  Baily  had  placed  upon  the  table  the  fur- 
ther correspondence  and  papers,  the  discussion  upon  Rule  I.  was 
resumed  by  Mr.  Rathbone,  who  was  followed  by  Mr.  Lowndes,  Mr. 
Jacobsen,  and  Mr.  Capper.  With  reference  to  the  word  '  structure,' 
Mr.  Natusch  defined  what  in  his  opinion  ought  to  be  considered 
the  frame  of  an  iron  ship. 

Dr.  Raiiusen  then  submitted  an  amendment  which  ran  as 
follows :  '  That  cargo  laden  in  au}"  structure  not  built  in  with  the 
frame  of  the  vessel  shall  be  considered  to  be  deck  cargo.' 

The  amendment,  which  was  seconded  by  Mr.  Hillmax,  having 
been  advocated  and  opposed  on  various  grounds  by  different  members 
of  the  committee,  was  finally  rejected  without  a  division. 

The  rule  as  it  then  stood  was  now  put  by  the  Chairman,  that : 
'  Every  structure  not  built  in  with  the  frame  of  the  vessel  shall  be 
considered  to  be  a  part  of  the  deck  of  the  vessel.' 

Mr.  Brown,  of  Hull,  made  some  technical  observations  hereupon 
which  were  not  approved  by  the  auditor3^  Dr.  Wertheim  read 
an  extract  from  the  report  of  the  labours  at  York,  in  which  Mr. 
Baily  supported  the  paragraph  which  he  was  now  desirous  of  sup- 
pressing. Mr.  Baily  retorted  that  he  had  taken  this  line  of 
action  precisely  because  of  the  difficulties  that  have  presented 
themselves.  Mr.  Lowndes  saw  no  difficulty  in  the  interpretation 
of  the  word  '  frame,'  and  proposed  the  maintenance  of  the  w^ord  in 
question. 

Dr.  Rahusen's  amendment :  '  That  cargo  laden  in  any  structure 
not  built  in  with  the  frame  of  the  vessel  shall  be  considered  to  be 
deck  cargo.'  As  it  stood,  the  amendment,  when  put  by  the  Chair- 
man, was  rejected,  and  the  whole  rule  w^as  then  put  to  the  meeting 
in  the  following  form  and  adopted  : — 

*  Rule  I.  Jettison  of  Deck  Cargo. — No  jettison  of  deck  cargo 
filiall  be  made  good  as  General  Average. 

'  p]very  structure  not  built  in  wuth  the  frame  of  the  vessel  shall 
be  considered  to  be  a  part  of  <ho  deck  of  the  vessel.' 
The  meeting  then  proceeded  to  di.scuss 

'  RcLE  1L  Duwar/e  Inj  Jcitlxon. — Damage  done  to  goods  or 
merchandise  l)y  water  which  unavoidably  goes  down  a  ship's  hatches, 


IN'n:i;XATI()NAL    ],AW    of    (lENiaiAL    AVKRA(JK.         L'i.'7 

opened  or  other  opeiiirg  madr,  for  tlio  purpose  of  making  a  jettison 
shall  1m'  niadc  good  as  (Jeneral  Average  in  case  the  loss  I)y  jettison 
is  so  made  good. 

'  Damage  done  by  breakage  and  chaBug,  or  otherwise  from  de- 
rangement of  stowage  consequent  upon  a  jettison,  shall  be  made 
good  as  General  Average.' 

Dh.  Weutiieim  proposed,  and  Mr.  Hillman  seconded,  that  the 
first  part  of  the  second  rule  be  adopted  as  printed.  Mr.  Hklm 
pointed  out  that  the  French  translation  did  not  convey  the  mean- 
ing of  the  English  text.  Mr.  Hill.man  proposed  that  the  word 
'  no '  be  introduced  before  the  word  '  damage,'  the  first  word  of  the 
rule.  Mr.  Van  Peboroh  declared  that  he  only  voted  for  it  at 
York  out  of  a  spirit  of  concession,  the  great  majority  being  then 
favourable  to  it.  Mr.  ^NfAXLKY  Hopkins  thought  that  it  was  diffi- 
cult and  perhaps  inopportune  to  discuss  this  question,  as  it  touched 
the  general  principle  of  what  are  the  consequences  of  an  average,  a 
subject  at  present  under  consideration  in  London  judicial  circles. 
Mr.  Hillman's  amendment,  opposed  as  it  was  to  the  first  part  of 
Rule  II.,  was  rejected  by  a  large  majority,  and  the  original  paragraph 
was  adopted  by  a  majority  of  37  votes  to  6. 

As  regards  the  second  paragraph  of  Rule  II.,  Dr.  Rahusen 
proposed  to  add  the  words  :  '  In  case  the  loss  by  jettison  is  so  made 
good.'  Mr.  Meier  here  remarked  that  it  was  desirable  that  every 
modification  which  only  bore  upon  the  change  of  words  should  be 
avoided  by  honourable  members  in  order  to  expedite  their  labours, 
and,  because,  in  any  case,  the  resolutions  of  the  congress,  before 
passing  into  law  in  any  country,  would  be  the  objects  of  a  profound 
examination  into  the  text. 

Dr.  Rahusen's  amendment  was  then  adopted,  the  second  para- 
graph accordingly  running :  '  Damage  done  by  breakage  and 
chafing,  or  otherwise  from  derangement  of  stowage  consequent 
upon  a  jettison,  shall  be  made  good  as  General  Average,  in  case 
the  loss  by  jettison  is  so  made  good.' 

The  meeting  now  proceeded  to  the  consideration  of  Rule  III., 
which  was  drawn  up  in  the  following  terms : — 

'Rule  III.  Extiiujuisldnrj  Fire  on  tShi2'>hoard. — Damage  done 
to  a  ship  and  cargo,   or  either  of  them,  by  water  or  otherwise, 

ft  2 


228  MARITIME    LEGISLATION. 

in    cxtino-iusliincr   a    fire    on    board    the    ship,    shall    be    General 

Average.' 

Mr.  Poor>E,  seconded  by  Mr.  Engels,  moved  the  adoption  of 

the  rule. 

Mr.  Lowndes,  however,  proposed  as  an  amendment  the  addi- 
tion of  the  words  •  '  Except  that  no  compensation  be  made  for 
damage  done  by  water  to  packages  actually  on  fire,' 

Dr.  Eahusen  seconded  the  amendment.  On  Mr.  Meier's 
suo-o-estion,  the  closing  portion  of  the  amendment  was  altered  from 
*  packages  actually  on  fire '  to  '  packages  which  have  been  on  fire.' 
Thus  altered,  the  amendment  was  adopted  by  a  majority  of  36  votes 
to  4. 

Rule  IV.  was  next  proceeded  with. 

'  Rule  IV.  Cut^ina  away  WrecJi. — Loss  or  damage  caused  by 
cutting  away  the  wreck  or  remains  of  spars,  or  of  other  things 
which  have  previously  been  carried  away  by  sea  peril,  shall  not  be 
made  good  as  General  Average.' 

Mr.  Capper,  seconded  by  Mr.  Murray,  moved  the  adoption  of 
the  rule  as  it  stood. 

Mr.  Hach,  in  the  name  of  the  German  committee,  asked  for  a 
reconsideration  of  the  rule  formulated  at  York,  which  he  maintained 
to  be  perhaps  too  absolute  for  all  contingencies,  and  stated  that  his 
friends  only  voted  for  it  ia  a  spirit  of  concession. 

Mr.  J.  Langlois  was  opposed  to  Rule  IV.,  because  the  captain 
was  thus  likely  U)  think  of  his  own  interest  rather  than  of  the 
general  interest,  aiid  he  asked  for  the  reasons  which  had  induced 
the  proposition  oi  Rule  IV. 

Dr.  Raiiusen  thought  that,  when  a  thing  which  is  overboard  is 
cut  away,  the  thing  is  already  lost.  It  was  not  just  to  allow,  as 
was  done  in  Holland  and  in  Belgium,  the  half  of  the  value  already 
lost.  A  mast  which  hangs  alongside  overboard,  held  to  the  ship 
only  by  a  few  ropes,  was  a  lost  mast.  From  another  point  of  view, 
Dr.  Rahuseu  went  on,  the  captain,  whose  vessel  was  insured,  would 
be  tempted  to  modify  his  protest  according  to  circumstances  if  the 
article  was  rejected. 

Mr.  Hopkins  admitted  that  Rule  TV.  was  harsh,  but  it  seemed 
dilTiciilt  to  do  otherwise,  and  it  is  !i]i])li('d  in  England. 


INTERNATIONAL   LAW   OF  GENERAL   AVERAGE.         220 

^lu.  Mii)i)LKi5Ei{G,  of  Copenhagen,  Mk.  Wjnge,  of  Cliristiunia, 
and  Mr.  Van  Pehukcii  all  supported  the  rule. 

Mh.  1L\tiii!unk  remarked  thai,  in  order  to  accept  it,  one  must  be 
imbued  with  the  general  s])iritof  the  rule,  in  virtue  of  which  there  is 
no  sacrifice  when  the  cause  itself  of  the  danger  is  to  be  sacriliced. 

Mk.  J.  Lancjlois  insisted  on  the  objections  which  he  had  offered. 
If  one  does  not  give  compensation  for  the  mast  which  has  been 
cut  away,  one  should  do  so  for  the  sails,  yards,  ajid  so  on,  that  are 
sacrificed  at  the  same  time. 

Mr.  Jacobsen  pointed  out  that  in  these  cases  the  sacrifice 
which  the  captain  nuide  was  compulsory,  and  not  voluntary,  which 
is  of  the  essence  of  (General  Average. 

Rule  IV.  was  then  put  to  the  vote,  and  adopted  unanimously. 

The  committee  now  adjourned  till  two  p.m.  On  its  reassembling 
at  that  hour  the  chair  was  taken  by  Lord  O'Hagan,  who  has  since 
died,  to  the  regret  of  his  friends  and  admirers. 

His  lordship,  who  was  supported  by  Sir  Travers  Twiss,  Messrs. 
E,  E.  Wendt,  Meier,  Engels,  Charles  Clark,  and  Van  Peborgh, 
read  llule  V,,  of  which  the  following  is  the  text : — 

'  IluLE  V.  Voluntary  Stiundiiig. — When  a  ship  is  intentionally 
run  on  shore  because  she  is  sinking  or  driving  on  shore  or  rocks, 
no  damage  caused  to  the  ship,  the  cargo,  and  the  freight,  or  any 
or  either  of  them  by  such  intentional  running  on  shore,  shall  be 
made  good  as  General  Average.' 

Mr.  Natusch  proposed,  and  Mr.  Rathbone  seconded,  the  rule, 
which  was  unanimously  adopted. 

Lord  O'Hagan  now  read  Rule  VI.     It  is  thus  conceived  : — 

'  Rule  VI.  Carrying  Press  of  Sail. — Damage  occasioned  to  a 
ship  or  cargo  by  carrying  a  press  of  sail  shall  not  be  made  good  as 
General  Average.' 

This  rule,  proposed  by  Mr.  Murray,  and  seconded  by  Dr.  Wek- 
TIIEIM,  was  carried  nemine  contradicenie. 

Lord  O'Hagan  then  read  Rule  VIL,  which  was  couched  as 
follows : — 

'  Rule  VII.  Tort  of  liefuge  Expenses. — When  a  ship  shall  have 
entered  a  port  of  refuge  under  such  circumstances  that  the  ex- 
penses of  entering  the  port  are  admissible  as  General  Average,  and 


230  MARITIME   LEGISLATION. 

when  she  shall  have  sailed  thence  with  her  original  cargo,  or  a 
part  of  it.  the  corresponding  expenses  of  leaving  such  port  shall 
likewise  be  so  admitted  as  General  Average  ;  and  whenever  the  cost 
of  discharging  cargo  at  such  port  is  admissible  as  General  Average, 
the  cost  of  reloading  and  stowing  such  cargo  on  board  the  said 
ship,  together  with  all  storage  charges  on  such  cargo,  shall  likewise 
be  so  admitted.  Except  that  any  portion  of  the  cargo  left  at  such 
port  of  refuge,  on  account  of  its  being  unfit  to  be  carried  forward, 
or  on  account  of  the  unfitness  or  inability  of  the  ship  to  carry  it, 
shall  not  be  called  on  to  contribute  to  such  General  Average.' 

Mr.  Hach  proposed  the  suppression  of  the  last  sentence  in  the 
rule  beginning, '  Except  that  any  portion  of  the  cargo.'  Mil.  Meiek 
seconded  this  amendment. 

Mr,  Hopkins  remarked  that  this  article  was  one  of  the  most 
important.  From  the  English  point  of  view  the  responsibility  of 
the  freight  entered  into  the  reckoning  as  an  element  of  appreciation. 

Mr.  Schneider,  of  Bremen,  then  read  the  following  extracts 
from  his  work  on  the  subject :  — 

■  Section  VII.  Expenses  and  losses  in  a  port  of  refuge  shall  be 
adjusted  as  General  Average  in  the  following  cases  only: 

(a)  When  a  vessel  has  entered  for  necessary  repairs  of  damage 
voluntarily  caused  to  it  in  the  interest  of  all  concerned ; 

(I))  When  a  vessel  has  entered  in  order  to  escape  from  hostile 
men  of  war ; 

(r)  When  a  vessel  has  entered  for  the  purpose  of  waiting  for 
instructions  from  the  parties  concerned,  in  case  the  port  of 
destination  is  under  hostile  sway. 

'  Neutral  goods  shall,  however,  be  free  from  contribution  in  the 
cases  h  and  c. 

'  If  a  vessel,  making  for  a  poi-t  of  refuge,  is  captured  or  perishes 
before  having  reached  the  port,  each  party  bears  its  loss,  although 
])art  (jf  the  cargo  may  have  been  saved  in  lighters. 

'XoCJcncral  Average  ensues  from  entry  into  another  port  in 
case  the  ]ioil  of  (lest  iiiat  ion  is  lilockaded  by  rriendly  forces  or  from 
detention  by  suju'rior  might. 

'The  expenses  and  losses  in  a  poit  of  I'eJ'iige  are,  with  reference 
to  repartition  in  particular  cases,  to  be  distinguished  as  follows  : — 


{ 


INTJaJXATIOXAL   LAW    OF   GEXEKAL    AVERAGE.         2.]l 

'  ] .   Expenses  payable  on  the  vessel's  entry  or  departure. 

'  2.  Liyrhterajje  und  d;iin!io-o  or  loss  sustained  in  the  act  of 
lighteniii'^  the  vessel. 

'  3.  Expenses  of  discharging  and  reloading,  and  of  carriage  and 
warehouse  rent,  in  case  the  vessel  must  be  discharged  for  the 
pui-pose  of  repairs. 

'4.  Wages  and  maiiifcnance  of  the  .ship's  equipage  during 
detention. 

'  5.  P^xpenses  of  procuring  money  for  defraying  tlie  charges 
incurred. 

'  If  a  vessel,  after  having  reached  a  port  of  refuge,  is  not  held 
worth  repairing,  the  expenses  and  losses  mentioned  under  1  and  2 
only  shall  be  distributed  as  General  Average. 

'  In  case  a  vessel  has  entered  a  port  of  refuge  for  repairs  of 
Particular  Average  the  expenses  under  1  and  4  shall  be  borne  by 
the  ship,  the  items  under  2  and  3  ratably  by  the  cargo,  those 
under  5  by  the  parties  for  whose  benefit  the  money  has  been 
expended. 

'  In  case  a  vessel  has  entered  a  port  of  refuge  for  repairs  of 
General  and  Particular  Average  the  expenses  incurred  shall  be 
divided  in  proportion  to  the  importance  of  each  description  of 
average  and  be  distributed  as  before  stated.' 

Sir  Tr avers  Twiss  proposed  in  the  first  place  to  discuss  the 
amendment  of  Mr.  Hach,  which  was  then  supported  by  ]\Ir. 
Lowndes,  and  regarded  from  various  points  of  view  by  Messrs. 
Baily,  Hillman  and  Nesbitt. 

Mr.  Coudert,  of  New  York,  brought  to  mind  the  reasons  for 
which,  by  nmtual  concessions,  the  resolution  of  York  had  been  taken, 
and  did  not  believe  that  it  was  necessary  to  give  them  up  any  more 
tliau  the  exception  which  Mr.  Hach  desired  by  his  amendment  to 
suppress. 

Mr.  Jacohsex  sul)mitted  some  arguments  in  fjivour  of  the  reso- 
lution of  York,  but  neither  did  he  admit  the  exception. 

Dr.  Bredius,  of  Dordrecht,  saw  a  contradiction  between  the 
exception  at  the  end  of  the  rule  and  the  other  part  of  it.  '  The 
rejection  of  tliat  exception,'  he  said,  '  would  be  an  injustice  to- 
wards the  ship,  when  a  portion  of  the  cargo  is  not  suitable  for 


232  MARITIME    LFXilSLATION. 

reloading;  and  in  case  of  tLe  incapacity  of  the  sliip  to  take  this 
cargo  again  on  board,  the  former  is  already  affected  with  the  loss 
of  its  freight.' 

Mr.  Meier  did  not  approve  the  point  of  view  taken  up  by 
Mr.  Coudert,  but  thought  that  the  exception  should  be  suppressed. 

In  reply  to  the  observation  of  a  member,  Sir  Travers  Twiss 
observed  that  the  final  words, '  such  General  Average,'  refer  only  to 
the  case  of  '  reloading  and  stowing  such  cargo  on  board  the  same 
ship.' 

After  some  observations  had  been  made  by  Mr.  Griffith,  Loijd 
O'IIagax  put  the  amendment,  which  was  carried  by  31  votes 
to  13. 

Mr.  Schneider  proposed  to  substitute  section  7  of  his  report 
for  Rules  YII.  and  VIII.,  but  found  no  support. 

Lord  O'Hacjan  then  put  it  that  Rule  VII.,  omitting  the  last 
paragi'aph,  be  approved  and  adopted.  This  proposal  was  accepted 
by  39  votes. 

Lord  O'Hagan  then  read  Rule  A^IIL,  which  runs  as  follows  : — 

'  Rule  VIII.  Wages  and  Mamtenance  of  Crew  in  Port  uf 
liefufje. — When  a  ship  shall  have  entered  a  port  of  refuge  under 
the  circumstances  defined  in  Rule  VII.,  the  wages  and  cost  of 
maintenance  of  the  master  and  mariners,  from  the  time  of  entering 
such  port  until  the  ship  shall  have  been  made  ready  to  proceed 
upon  her  voyage,  shall  be  made  good  as  General  Average.  Except 
that  any  portion  of  the  cargo  left  at  such  port  of  refuge  on  account 
of  its  being  unfit  to  be  carried  forward,  or  on  account  of  the  unfit- 
ness or  inability  of  the  ship  to  carry  it,  shall  not  be  called  on  to 
contriljute  to  such  General  Average.' 

Mr.  Rathhonk  moved,  and  ])r.  Rahusen  seconded,  the  adoption 
of  this  rule.  ]\lj{.  Hacii  })roposcd  the  omission  of  all  words  from 
tlic  word  '  exce])t,'  and  I)k.  15j{EDIUS  seconded  him.  The  amciul- 
iiifiit  was  carried  by  32  votes  to  2. 

Mk.  Nksiutt,  however,  o]i])osed  the  wliolc  nilc.  and  proposed  the 
insertion  ol"  the  word  '  not  between  'shall  uiid  'be  math'  in  the 
final  clause  of  the  iMiiemliil  I'lilc. 

^In.  ?^Ii;iKl{  remarked  thiit  tlii>-|ioihl  \\;is  ofgi-eai  importance  for 
the  relations  between  slii|;o\Mieis  antl  jji.-uier.^.      Tolicies  could  be 


INTERNATIONAL   LAW    OF   GENERAL   AVERAGE.         2.33 

easily  effected  at  Lloyd's  with  the  clause  to  pay  according  to 
foreign  General  Average  statements.  Now  the  expenses  foreseen 
in  Rule  VII.  are  providi'd  for  thus,  and  Lloyd's  have  never  raised  any 
difficulties.  It  was  astonishing  that,  although  they  continued  to 
insure  every  day  on  such  conditions,  they  came  now  into  that  room 
and  declared  lure  the  whole  suljject  of  General  Average  to  be  a 
calamity. 

Mr.  JoiLV  (iLOVEKsaid,  as  a  delegate  of  the  English  shipowners, 
that  his  clients  did  not  ask  for  the  protection  of  English  insurers. 
He  added  that  there  could  not  be  any  temptation  for  captains  to 
prolong  their  stay  in  ports  of  refuge,  because  the  loss  of  time  to 
steamers  was  so  considerable  that  reimbursement  of  the  crews'  ex- 
penses was  as  nothing  in  comparison  to  it ;  and  opinion  in  England 
had  long  ago  got  the  upper  hand  of  the  law  on  this  point.  In 
mutual  assurance  clubs  wages  were  always  allowed. 

Mil.  Cappek,  representing  the  shipowners  of  the  Bristol  Chan- 
nel, strongly  supported  the  remarks  of  Mr.  Glover. 

Mr.  Hillman  observed  that,  of  course,  Lloyd's  could  not  exist 
if  they  refused  to  grant  policies  with  such  clauses  as  agreed  with  the 
foreign  practice.  In  reply  to  other  speakers,  Mk.  Hillman  de- 
clared that  if  the  principle  of  this  reimbursement  was  just,  it 
should  be  further  extended  and  allow  also  for  the  loss  suffered 
through  detention,  interest,  &c.,  and  with  regard  to  the  usages 
of  mutual  assurance  clubs,  it  could  not  be  denied  that  they  existed 
under  very  peculiar  circumstances. 

Mr.  Rathbone  thought  that  Rule  VII.  contained  a  concession, 
and  confined  itself  within  very  wise  limits.  Lloyd's  should  congra- 
tulate themselves  that  these  concessions  were  not  carried  to  a  wider 
extent. 

Mr.  Coudert  was  astonished  to  hear  continual  allusion  made 
to  the  fear  that  the  bad  conduct  of  captains  inspires.  In  his 
country  these  fears  do  not  exist,  and  one  would  blush  to  be  per- 
petually discussing  on  the  hypothesis  that  maritime  and  commercial 
interests  are  constantly  exposed  to  danger  in  the  hands  of  captains. 
He  was  then  for  the  full  payment  of  wages. 

Mr.  Nesbitt's  amendment,  which  was  supported  by  the  dele- 
gates from  Lloyd's,  was  then  rejected  by  10  votes  to  G. 


234  MARITIME    LEGISLATION. 

Mr.  Lo'V^'NDES  proposed  to  add  the  following  words  :  '  Deduct- 
ino-,  however,  anv  saving  in  the  expense  actually  made,  or  which 
ought  to  be  made,  by  paying  off  the  crew,  or  any  portion  of  tlieni, 
at  the  port  of  refuge.' 

Mr.  Rathbone  seconded  this  amendment,  and  Mr.  Hach 
opposed  it. 

One  member  of  the  committee  remarked  on  the  impossibility 
and  danger  of  having  the  conduct  of  the  captain  on  this  point 
estimated  by  a  third  person.  Besides,  it  was  not  in  harmony  with 
the  general  rule,  according  to  which  every  captain  who  engaged  a 
crew  was  bound  to  bring  it  home  again  unless  authorised  to  pay  it 
off,  or  unless  the  paying  off  took  place  by  common  consent.  One 
could  not  then  raise  the  objection  that  the  captain  would  have  been 
able  at  a  certain  moment  to  pay  off  his  crew. 

Mr.  Lowndes's  amendment  was  rejected,  only  four  members 
voting  for  it.  Rule  VIII.  was  then  put  by  Lord  O'Hagan  as 
originally  proposed,  and  carried  by  45  votes  to  5. 

Lord  O'Hagan  then  submitted  for  consideration 

'Rule  IX.  Damage  to  Cargo  in  Discharging. — Damage  done  to 
cargo  by  discharging  it  at  a  port  of  refuge  shall  not  be  admissible 
as  General  Average  in  case  such  cargo  shall  have  been  discharged 
at  the  place  and  in  the  manner  customary  at  that  port  with  ships 
not  in  distress,'  which  was  moved  by  ]\Ir.  Coudert  and  seconded 
by  Mr.  Rathbone. 

Mr.  Manley  Hopkins  proposed  that  the  rule  should  be  altered 
to :  '  Damage  done  to  cargo  by  discharging  it  at  a  port  of  refuge 
BJiall  be  admissible  as  General  Average.'  This  was  seconded  by 
Mr.  Langlois. 

Mr.  Glover  thought  there  was  reason  for  not  losing  sight  of 
the  fact  that  the  discharging  might  cause  material  losses  which 
(•(juld  not  l)i-  ciiiit'oiinded  with  such  arrangement  as  one  probably 
had  ill  \if\v. 

Mr.  Hoi'KiNS  explained  that  discliarging  a  cargo  in  a  port  of 
refuge  was  always  tlio  cause  of  an  additional  loss.  Mr.  Griffith 
stronglv  objected  to  the  aiin'iKliiicnt. 

.Mi;.  Ivn(;):i,s  uiaintaiiird  that  flic  large  number  of  claims  for 
losses  on  iiK-rchandi^e  discharged  in  a  harbour  of  refuge  rendered 


INTERNATIONAL   LAW   OF  GENERAL   AVERAGE.         235 

(lesirabk'  tlu-  iiKiintcnauce  of  Rule  IX.  in  the  form  in  winch  it  is 
proposed. 

The  tuiieiidment  was  then  pnt  and  lost  by  a  large  majority, 
37  being  against  and  8  for  it.  The  original  York  rule  as  first 
read  was  then  submitted  to  the  committee  by  Lord  O'Hagan  and 
adopted  by  10  votes  to  3. 

Some  members  here  proposed  that  the  sitting  should  terminate, 
but  the  majority  decided  to  proceed  to  the  examination  of  the  two 
last  York  rules. 

Lord  O'Hagan  then  read 

'  Rule  X.  Contribxtori/  Values. — The  contribution  to  a  General 
Average  shall  be  made  upon  the  actual  values  of  the  property  at 
the  termination  of  the  adventure,  to  which  shall  be  added  the 
amount  made  good  as  General  Average  for  property  sacrificed  ; 
deduction  being  made,  from  the  shipowner's  freight  and  passage- 
money  at  risk,  of  two-fifths  of  such  freight,  in  lieu  of  crew's  wages, 
port  charges,  and  all  other  deductions  ;  deduction  being  also  made, 
from  the  value  of  the  property,  of  all  charges  incurred  in  respect 
thereof  subsequently  to  the  arising  of  the  claim  to  General 
Average.' 

Dr.  Rahusen  proposed,  and  Mr.  Rathbone  seconded,  the 
adoption  of  this  rule. 

Mr.  Hach,  seconded  by  Mr.  Meier,  proposed  that  the  following 
clauses  be  substituted  for  Rule  X. : — 

'  The  cargo  contributes  with  the  actual  net  value  of  the  goods 
at  the  end  of  the  voyage,  deducting  the  then  still  existing  value 
of  those  repairs  and  supplies  which  have  been  made  after  the 
casualty. 

'  The  freight  contributes  wdth  two-thirds  of  its  gross  amount 
(eventually  to  concede  three-fifths,  or  even  one-half). 

'  To  all  these  contributing  values  is  to  be  added  the  amount 
made  good  in  General  Average  objects  sacrificed.' 

And  after  having  gone  into  the  reasons  for  their  proposal, 
which  were  further  elucidated  by  Messrs.  Jacobsen,  Lowndes,  and 
Bailv,  ^Ir.  Hach's  amendment  was  rejected  by  28  votes  to  8. 

^Ih.  ("ornKRT,  seconded  by  Mr.  Hii-T-Man,  proposed  the  follow- 
ing   amendment  :    '  Freight    contributed    for    must    contribute    at 


2.3G  MARITIME   LEGISLATION. 

the  rate  contributed  for/  wliich  was  opposed  by  Mr,  Lowndes 
and  Mr.  Baily  and  rejected.  Mr.  Loavndes,  supported  by  Mr. 
Driebeek,  then  proposed  : 

'  That  Eule  X.  be  amended  by  the  omission  of  the  words  "  two- 
fifths  of  such  freight  in  lieu  of  crew's  wages,  port  charges,  and  all 
other  deductions  ;  "  and,  in  their  place,  that  the  following  words  be 
inserted  :  "such  port  charges  and  crew's  wages  as  would  not  have 
been  incurred  had  the  ship  and  cargo  been  totally  lost  at  the  date 
of  the  General  Average  Act  or  sacrifice."  ' 

After  some  remarks  from  Mr.  Baily  and  Mr.  Glover,  the 
President  read  the  rule  and  the  proposed  amendment,  and  there 
were  28  against  and  11  for  the  amendment. 

Lord  O'Hagan  then  put  to  the  meeting,  '  That  the  rule  as 
altered  by  Mr.  Lowndes's  amendment  do  pass,'  and  it  was  carried 
unanimously. 

Lord  O'Hagan  then  read 

'  Rule  XI.  Loss  of  Freight. — In  every  case  in  which  a  sacri- 
fice of  cargo  is  made  good  as  General  Average,  the  loss  of  freight 
(if  any)  which  is  caused  by  such  loss  of  cargo  shall  likewise  be  so 
made  good.' 

^hi.  CouDERT  proposed,  and  Mr.  Glover  seconded  the  rule, 
and  it  was  thereupon  unanimously  adopted. 


On  Saturday,  September  1,  the  chair  of  the  General  Average 
Committee  was  taken  by  Mr.  Th.  Engels,  who  was  supported  by 
Messrs.  Wendt,  Meier,  and  Van  Peborgh. 

The  Honorary  Secretary  to  the  Committee,  Mr.  J.  Rand 
Baily,  read  over  the  eleven  rules  approved  and  adopted  on  the 
previous  day. 

Mr.  Col'DERT  proposed,  and  Mr.  Ratiibone  seconded,  'That 
tlic  rules  as  now  read  are  accurate,  and  sliould  be  adopted.' 

Dii.  JiAiirsK.N  jjfoposcd  tliat  these  rules,  which  will  hereafter 
be  known  as  the  '  Rules  ol"  Aiit\ver|»,"  should  be  officially  translated 
into  I'Vench. 

.Mk.  liATlIliONE  proposed  that  the  new  rules  should  be  named 
'  TIh'  ^'ork  Rules,  aineiidi'd  at  Antwerp.' 


INTERNATIONAL   LAW   OF   GEXERAL   AVERAGE.         237 

Mr.  Meier  was  of  opinion  that  the  English  text  should  remain 
the  official  one,  and  that  local  committees  should  charge  themselves 
with  the  duty  of  making  good  translations  of  it,  which  would  after- 
Avards  be  communicated  to  the  general  council,  and  the  general 
council,  in  case  of  doubt  as  to  the  sense,  would  make  its  observa- 
tions on  it. 

Mr,  Langlois  asked  tliat  the  English  text  should  be  always 
joined  to  the  translated  text.  Errors,  for  example,  had  Ijeen  com- 
mitted in  Belgium  in  the  application  of  the  rules  as  to  collisions, 
because  the  French  text  was  incorrect,  and  the  errors  had  only 
been  put  right  when  the  English  text  was  produced  in  a  court  of 
justice. 

Mr.  Engels  thought  that  this  junction  of  the  texts  would  be 
difficult  in  its  official  application. 

Mr.  Baily  added  that  this  was  a  question  entirely  for  the 
interested  countries. 

The  discussion  having  dropped,  the  Chairman  called  upon  Mr. 
Hach  to  bring  forward  the  additional  rules  suggested  by  the 
German  Committee,  upon  which  Mr.  Hach  suggested  that  the 
rules  now  agreed  to  should  be  preluded  by  a  clear  definition  of 
General  Average,  and  proposed  the  addition  of  a  rule  in  the  terms 
of  Art.  702  of  the  German  Commercial  Code,  page  3  of  the  Report 
of  the  German  Committee,  as  follows  : — 

'  All  damage  intentionally  done  to  ship  or  cargo,  or  both,  by 
the  master,  or  by  his  orders,  for  the  purpose  of  saving  both  from  a 
common  danger,  together  with  any  further  damage  occasioned  by 
such  measures,  and  likewise  expenses  incurred  for  the  same  pur- 
pose, are  General  Average.  General  Average  is  borne  by  ship, 
freight,  and  cargo  conjointly.' 

Dr.  Rahusen  considered  it  dangerous  to  formulate  a  gene- 
ral definition  of  General  Average,  and  criticised  the  German 
formula. 

Mr.  Hopkins  added  that,  if  this  path  were  entered  on,  the  de- 
liberations would  last  some  days  longer. 

Mr.  Capper  also  thought  that  it  was  not  prudent  to  discuss 
what  General  Average  should  be ;  the  congress  had  assembled  to 
endeavour  to  make  alike  everywhere  the  laws  on  General  Average, 


233  MARITIME   LEGISLATION. 

and  in  no  way  to  discuss  the  definition  and  character  of  General 
Average. 

Mr.  Meier  considered  that  the  York  rules  being  far  from  com- 
prising the  greater  part  of  the  rules  which  present  themselves  in 
practice,  it  was,  on  the  contrary,  very  wise  to  lay  down  a  general 
principle,  as  had  been  done  in  the  code  of  German  commerce, 
for  in  defining  only  particular  cases  one  exposed  the  Judges 
to  the  difficulty  of  having  no  sound  rule  of  conduct  in  cases  not 
foreseen. 

Mr.  Griffith  thought  that,  after  having  at  York  suppressed 
certain  differences  of  detail  between  the  usages  of  different  countries, 
the  Germans  did  well  to  seek  to  establish  general  principles,  thus 
laying  the  foundations  of  the  building  before  erecting  it.  It  was, 
therefore,  only  a  question  to  know  if  the  proposed  formula  was 
good  or  incorrect,  and  whether  it  is  within  the  province  of  the 
present  labours  of  the  congress  to  proceed  to  the  examination 
of  it. 

Mr.  Lowndes  said  he  considered  that  it  would  be  impracticable 
and  undesirable  to  attempt  a  definition.  The  rules,  as  being  dis- 
cussed, did  not  pretend  to  be  a  code,  but  only  rules  as  to  certain 
points  on  which  countries  differed. 

Mr.  Coudert  agreed  with  him, 

Mr.  Yax  Peborgh  was  of  opinion  that  general  definitions  were 
necessary  and  proposed  a  formula. 

]Mr.  Laxglois  supported  the  formula  of  the  German  code. 

Mr,  Nesbitt  was  disposed  to  adopt  a  good  definition, 

]VIr,  Engels  submitted  to  the  assembly  the  previous  question : 
Should  a  definition  be  given  or  not  ? 

After  Mr.  Baily  had  made  some  objections,  Mr.  Gaemaere 
remarked  that  the  assembly  could  not  settle  absolutely  and  generally 
the  (jurist ion  whether  there  was  room  for  the  introduction  of  a  defini- 
tion into  the  law  or  not ;  at  the  most  it  could  declare  whether  it 
judged  it  opportune  at  the  moment  to  express  itself  on  that  question. 
}fe  asked  the  assembly  tlierefore  simply  to  decide  that  it  does 
not  judge  it  necessary  to  iuU\  at  this  moment  to  the  ^'ork  rules  a 
definition  of  General  Averages 

Mr.  Hach's  motion  was  reiocted  bv  a  l!ir<re  mnioritv. 


INTERNATIONAL  LAW   OF  GENERAL  AVERAGE.        289 

The  Chairman  luiving  asked  if  there  were  any  furtlier  proposals 
to  add  to  the  rules,  Mr.  Hach  proposed  to  add  a  rule  in  the  follow- 
ing words  : — 

*  Average  contribution  takes  place  only  when  both  ship  and 
cargo,  wholly  or  in  part,  have  been  actually  saved.' 

Mr.  Baily  requested  ]\lr.  Hach  to  explain  what  was  meant  by 
the  word  'actually,'  a  word  which  bethought  would  cause  difference 
of  opinion. 

Mr.  Hach  agreed  to  substitute  the  word  '  ultimately.'  Mr. 
Meier  seconded  the  amended  motion.  After  some  discussion,  in 
which  Messrs.  Manley  Hopkins,  Jacobsen,  and  Rahusen  took 
part,  Mr.  Lowndes  proposed  the  previous  question.  He  considered 
the  proposed  addition  involved  the  question  of  what  was  the 
ultimate  ability  of  an  owner,  which  would  lead  to  great  difficulty 
and  danger. 

Mr.  IIathbone  supported  Mr.  Lowndes's  motion  to  propose  the 
previous  question. 

Mr.  Langlois  agreed  with  the  preceding  speakers  in  finding 
the  rule  bad,  or  at  least  dangerous ;  but  he  would  not  support  the 
previous  question,  because  it  was  well  to  bring  back  the  Germans 
from  their  error. 

Mr.  Coudert  would  also  find  utility  in  discussion,  solely  as  the 
Germans  do  not  themselves  understand  their  law,  and  because  at 
this  very  moment  they  had  altered  the  most  important  term  in  it. 
He  thought  there  was  reason  for  opposing  the  previous  question ,  as 
one  found  oneself,  in  effect,  in  the  presence  of  two  different  traps. 

Mr.  Baily  judged  it  opportune  to  prove  to  the  Germans  all 
that  was  defective  in  their  law. 

Dr.  Sieveking,  of  Hamburg,  gave  an  explanation  of  the  word 
'  actually,' 

On  an  observation  of  Mr.  Coudert  the  German  delegates  with- 
drew the  word  '  ultimately.' 

After  Mr.  Lowndes  had  withdrawn  his  motion  to  propose  the 
previous  question,  Mr.  Winge  quoted  several  cases  to  show  how 
disadvantageously  the  German  law  had  worked.  Mr.  Baily  moved 
thereupon,  as  an  amendment,  that  the  following  rule  be  added  in 
the  place  of  that  proposed  by  Mr.  Hach  : — 


240  MAmriME    LEGISLATION. 

'  Whenever  tliere  is  not  any  pecuniary  benefit,  or  wlien  the 
pecuniary  benefit  is  less  than  the  expense  caused  by  a  General 
Average  act,  the  excess  of  that  expense  over  that  benefit  shall 
be  apportioned  over  the  benefits  which  at  the  time  when  the 
General  Average  was  performed  it  was  intended  that  it  should 
produce.' 

Mk.  Nesbitt  seconded  this. 

Mr.  Van  Peborgh  opposed  this  amendment,  as  contrary  to  the 
general  principle  of  most  nations  that  value  saved  is  the  limit  of 
the  contribution. 

Dr.  Rahusen  invoked  the  laws  on  responsibility,  and  the  right  of 
abandonment,  which  are  different  in  different  countries,  in  opposing 
the  amendment  of  Mr.  Baily. 

Mr.  Capper  cited  the  case  of  a  shipowner  who  had  paid  all  the 
ex:[3enses  of  putting  in  at  a  port  of  refuge,  and  the  ship  and  cargo 
afterwards  perished  before  arriving  at  the  port  of  destination ;  he 
asked  if  the  shipowners  ought  to  support  all  the  loss. 

Messrs.  Engels  and  Meier  :  You  shipowners  ought  to  insure 
your  advances. 

Messrs.  Baily  and  Hach  declared  themselves  satisfied  if  they 
had  succeeded  in  attracting  for  the  future  the  attention  of  compe- 
tent persons  to  this  important  question.  Mr.  Hach  withdrew  his 
motion,  and  the  ChairMxVN  put  the  previous  question,  which  was 
carried  unanimously. 

Mr.  Hach  then  submitted  for  the  acceptance  of  the  committee 
the  following  proposition  :  '  The  amount  to  be  allowed  for  goods 
sacrificed  is  computed  analogous  to  the  contributory  value  by  the 
actual  net  value  of  the  goods  in  the  same  quality  and  condition  at 
the  end  of  the  voyage.' 

Mr.  Meier  seconded  the  adoption  of  this  proposition  ;  and, 
after  some  discussion  between  Messrs.  Jacobsen  and  Lowndes, 
j\Ii{.  Bah.y  proposed,  as  an  amendment,  the  adoption  of  the  follow- 
ing rule  :  ''J'he  value  to  be  allowed  for  goods  sacrificed  shall  be 
that  value  which  the  owner  would  have  received  if  such  goods  had 
not  been  sacrificed.' 

Mr.  Manley  Hopkins  seconded,  Mr.  INFeier  opposed,  the 
amendment.     Mr.  Hathbone  was  of  opinion  that,  if  Mr.  Meier's 


INTERNATIONAL   LAW   OF  GENERAL  AVERAGE.        2J1 

view  were  adopted,  the  owners  of  jettisoned  goods  would  be  placed 
in  a  better  position  than  tlui  own^-r  of  other  goods. 

The  Chairman  put  Mr.  Buily's  amendment,  which  was  carried 
by  a  majority  of  ol  to  7.  Tlun-eupon  Mu.  llACn  withdrew  his 
motion. 

The  Chairman  then  put  it  to  the  vote :  '  That  the  words  of  the 
amendment  of  Mr.  Baily  do  form 

'  IluLE  XII.  Amount  to  bo  made  (jood  for  Cargo. — The  value  to 
be  allowed  for  goods  sacrificed  shall  be  that  value  which  the  owner 
would  have  received  if  such  goods  had  not  been  sacrificed.' 

This  was  carried  unanimously. 

Mr.  Hacu  then  submitted  that  'the  amount  to  be  allowed  for 
objects  sacrificed  of  ship  and  ship's  material  is  regulated  by  the 
usages  of  the  port  where  the  average  statement  is  to  be  made  up.' 
Dr.  Rahusen  pointed  out  various  objections  to  this  amendment, 
which  Mr.  Each  then  withdrew. 

Mr.  Langlois,  however,  considered  the  point  one  which  should 
be  argued,  and  gave  notice  that  he  would  bring  it  forward,  with 
some  modifications,  at  the  afternoon  sitting. 

The  committee  then  at  one  o'clock  adjourned. 


At  the  afternoon  sitting  of  August  31,  commencing  at  2.30 
P.M.,  M.  T.  Engels  took  the  chair.  He  was  supported  by  Messrs. 
Wendt,  Meier,  and  Van  Peborgh. 

Mr.  Lowndes,  after  pointing  out  the  difference  between  the 
systems  of  England  and  other  countries  relative  to  articles  replaced 
or  repaired,  submitted  the  following  to  be  added  as  a  new  rule  : — 

'  When  new  work  replaces  old  the  deduction  shall  be  one-third, 
subject  to  the  following  exceptions,  viz.  : — 

'  1.  No  deduction  shall  be  made  during  the  ship's  first  year. 

'  2.  Anchors  are  allowed  in  full. 

'  3.  Chain-cables  are  subject  to  one-sixth  only. 

'  4.  In  case  of  repairs  at  a  port  of  refuge,  the  deduction  shall  not 
exceed  one-third  of  the  estimated  cost  of  such  repairs  at  the  port 
of  adjustment. 


242  MARITIME   LEGISLATION. 

'  5.  No  deJuctioii  to  be  made  for  one-third  of  bottomry  premiums, 
or  commissions  on  advance. 

'  6.  No  deduction  is  to  be  made  from  temporary  repairs.' 

Mr.  Glover  opposed  the  rule  as  suggested,  inquiring  if  Mr. 
Lowndes  proposed  to  make  anj^  distinction  between  wooden  and 
iron  ships. 

Mr.  Lowndes  said  he  would  be  glad  to  modify  his  proposal  by 
introducing  such  a  distinction,  but  would  like  to  know  what  was 
suggested. 

Mr.  Meier  said  it  was  perfectly  ridiculous  to  want  at  the  end 
of  a  year  a  reduction  of  one-third  on  iron  ships.  The  speaker  did 
not  wish  to  make  any  proposition,  because  the  building  of  iron 
ships  was  of  too  modern  date  for  one  to  be  able  to  form  a  sound 
estimate.  Not  to  complicate  the  situation,  he  was  of  opinion  that 
the  subject  should  not  be  touched,  otherwise  he  would  propose  that 
there  should  be  no  reduction  during  the  five  first  years,  and  after- 
wards a  sixth  reduction  during  ten  years. 

Mr.  Nesbitt  said  he  considered  the  subject  well  worthy  of 
discussion,  but  it  could  not  be  entered  upon  fairly  or  conveniently 
at  this  meeting ;  and  after  further  remarks  by  Messrs.  Hillman  and 
Glover,  the  Chairman  put  the  previous  question,  which  was  carried 
by  34  votes  to  4. 

Mr.  Ahlers  moved  the  insertion  of  the  following  rule  :  '  Either 
party  whose  property  has  been  jettisoned  or  sacrificed  for  the 
common  safety  has  a  lien  on  the  interests  saved  for  contribution, 
A\liich  may  be  enforced  by  application  to  the  proper  tribunal  or  by 
retaining  possession,  where  the  party  entitled  to  the  lien  is  in 
possession.' 

Mr.  HacH  seconded  this,  and  after  much  discussion  by  MESSRS. 
Hahusen,  CJlovkh,  Hatiiijone,  Natuscii,  Hillman,  Murray,  and 
AiiLERS,  the  Chairman  expressed  a  doubt  whether  the  suggestion 
was  practicable,  as  it  would  be  impossible  for  a  merchant  to  know 
wlietlier  goods  of  a  similar  kind  saved  were  his  or  not. 

The  (,"haii{NL\N  llirn  put  llic  previous  (piestion,  which  was 
carried  by  2  1  to  '.). 

Mi{.  Lowndes  suggested  the,  addition  of  a  rule  as  follows: — 

'  l)an:age  done  by  defending  the  ship  against  enemies  or  pirates. 


lNrKUXAT[()XAL    LAW    OF   GENERAL    AVi:i!A(iE.         24.J 

auunuuition  expended  in  such  defence,  and  compensation  lawfully 
paid  to  wounded  seamen,  are  General  Average.' 

Which  was  likewise  negatived  without  discussion,  the  votes 
being—  for  the  previous  question,  15  ;  against,  13. 

Mr.  Meier  now  said  that  the  deliberations  on  the  International 
Cieneral  Average  Congress  having  been  concluded,  it  was  time  to 
think  of  the  means  most  suitable  to  give  practical  effect  to  the 
rules  voted  by  the  congress.  His  proposition  was  therefore  that  the 
local  committees  should  be  moved  to  take  such  measures  as  Ihey 
think  suitable  for  obtaining  the  acceptance  of  the  views  of  the  con- 
gress by  their  respective  Governments,  and  to  rendiT  an  account  to 
the  general  council  of  the  result  of  the  steps  so  taken. 

In  this  way,  by  the  exercise  of  every  influence  they  could  bring- 
about,  they  would  eventually  succeed  in  seeing  the  rules  carried 
out  which  have  actually  been  voted. 

After  Dr.  Haiicsen  had  made  some  observations  to  tlie  same 
effect,  Mr.  John  Glover  expressed  a  wish  to  see  the  delegates 
from  Lloyd's  working  for  the  acceptance  of  the  results  of  the 
congress. 

Mr.  Natusch  seized  this  opportunity,  as  a  delegate  from  Lloyd's, 
to  say  that  he  believed  he  ought  to  declare  that  the  results  of  the 
congress  would  not  answer  to  the  views  of  the  insurers  of  Lloyd's. 
They  knew  this  beforehand  ;  but,  invited  to  the  congress,  they  con- 
sidered that  they  would  be  performing  an  act  of  courtesy  in  sending 
delegates.  He  referred  to  the  opinions  of  Lloyd's,  and  begged  them 
to  understand  clearly  that  delegates  from  Lloyd's  had  taken  no  share 
in  voting  the  'Rules  of  York,  amended  at  Antwerp.'  He  wound 
up  by  returning  thanks  for  the  kind  reception  the  delegates  had 
received. 

Mr.  Hillmax  confirmed  the  remarks  of  his  colleague.  He  would 
inform  his  constituents  that  thev  did  well  in  sendin<>-  delegates  to 
the  congress.  He  was  convinced  that  the  labours  of  the  congress 
would  produce  good  fruit  in  the  future. 

Mr.  Rathbone,  as  President  of  the  Underwn-iters  of  Liverpool 
and  delegate  from  the  Chamber  of  Commerce  of  that  town,  protested 
against  the  remarks  of  the  delegates  from  Lloyd's,  if  they  assumed 
to  have  spoken  in  the  name  of  the  majority  of  English  underwriters, 

i{  2 


214  MARirniE    LEGISLATION. 

and  declared  tliat  his  constituents  in  tlie  most  loyal  and  complete 
fashion  would  endeavour  to  have  passed  in  use  and  practice  the 
rules  here  actually  voted.     (Applause.) 

He  reo-retted  that  Mr.  Baily  was  not  present  at  this  moment, 
for  he  would  undoubtedly  ratify  his  declaration  in  the  name  of  the 
Liverpool  shipowners,  and  it  was  not,  perhaps,  needless  to  add  that 
Mr.  Baily  represented  pboiit  800,000  tons  of  shipping.     (Applause.) 

Mr.  Meier's  motion  was  adopted. 

This  closed  the  proceedings  of  the  committee. 

At  the  suggestion  of  Mr.  Jencken,  it  was  agreed  to  frame  a 
report,  and,  in  pursuance  of  the  practice  of  the  Association,  to 
submit  the  resolutions  and  report  to  the  g'eneral  meeting  in  confer- 
ence. The  members  then  adjourned  into  the  principal  hall,  where 
his  lordship  was  presiding. 

The  printed  report  of  the  General  Average  Committee  was  now 
submitted  to  the  conference.     It  ran  as  follows  : — 

'  Your  committee  adopted  as  the  basis  of  its  discussions  the 
body  of  rules  framed  at  York  in  1864,  and  known  by  the  name  of 
'•  The  York  Kules."  They  first  revised  those  rules  in  detail,  and 
then  proceeded  to  consider  what  additions,  if  any,  should  be  made 
to  them.  The  alterations  which  your  committee  have  made  in  the 
Y''ork  rules  are  as  follows  : — 

'  1.  The  first  York  rule,  which  admitted  into  General  Average 
one  kind  only  of  deck-load  jettison,  namely,  that  of  wood  goods, 
has  been  altered,  and  the  rule  now  stands,  that  "No  jettison  of 
deck  cargo  shall  be  made  good  as  General  Average." 

'  2.  To  the  third  York  rule,  which  provided  that  damage  done 
by  the  measures  taken  to  extinguish  a  fire  on  shipboard  should  be 
treated  as  General  Average,  your  committee  has  added  the  restric- 
lifjn  that  no  compensation  shall  be  made  for  damage  done  by  water 
to  ])iiek;igcs  wliicli  li;i\o  biT'U  ou  fire. 

'  3.  The  seventh  and  eighth  '^'ork  rules,  after  providing  that, 
in  certain  cases,  the  cost  of  reloading  cargo  and  leaving  a  port  ot 
refuge,  and  the  wages  and  provisions  of  the  crew,  whilst  in  such 
port,  should  be  fn-atcd  as  (JcikmiI  .\ vcr.Mgc,  cxcniitlcd  from  cdii- 
I  rib'.iti'di  lo  such  <Ii'iier,il  .\ver;igi'  iiiiy  goods  dial  iiiiglil  liave  been 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.         24.1 

sold  at  tho  port  of  refuge.     Your  committee  has  wiflulrawu  1liat 
exemption. 

''i.  Whereas  the  tenlli  York  rule  had  based  the  contribution 
of  freight  on  tln*ee-fifths  of  its  gross  amount,  your  committee  lias 
considered  ihat  the  gross  freight  should  contribute,  subject  to  the 
deduction  of  such  port  charges  and  crew's  wages  as  would  not 
have  been  incurred  had  the  ship  and  cargo  been  totally  lost  at 
the  date  of  the  General  Average  act  or  sacrifice. 

'  With  these  modifications  the  York  rules  have  been  adopted, 
some  of  them  unanimously  and  tho  remainder  by  very  largo 
majorities  of  your  committee.  After  full  consideration  of  a  large 
number  of  proposed  additional  rules,  your  committee  has  deter- 
mined to  adopt  no  additional  rule,  excepting  the  following,  which 
forms  Rule  XII.  below,  viz. : — 

'  "  The  amount  to  be  allowed  for  goods  sacrificed  shall  be  that 
value  which  the  owners  would  have  received  if  their  goods  had 
not  been  sacrificed." 

'  The  rules  which  j'our  committee  now  lay  before  you  as  the 
basis  of  a  uniform  system  of  General  Average  for  all  maritime 
countries,  and  to  which  the  title  might  be  given  of  the  "  York  and 
Antwerp  Rules,"  are  appended. 

'  In  bringing  their  mission  to  a  close,  your  committee,  on  the 
motion  of  Herr  Meier,  President  of  the  North  German  Lloyd, 
unanimously  agreed  to  submit  to  the  conference  the  following 
resolution : — 

'  "  That  the  local  committees  of  this  association  be  requested  im- 
mediately to  take  such  steps  as  they  may  deem  expedient  with  a 
view  to  insuring  a  consideration  of  the  rules  as  revised  and  the 
favourable  attention  and  action  of  their  respective  Governments, 
reporting  the  result  of  such  steps  to  the  council  of  the  Association."  ' 

The  York  and  Antwerp  Rules. 

Rule  I.  Jettison  of  Deck  Cargo. — No  jettison  of  deck  cargo 
shall  be  made  good  as  General  Average. 

Every  structure  not  built  in  with  the  frame  of  the  vessel  shall 
be  c<msidered  to  l)e  a  ]")iivt  lA'  tin-  drck  ol'  tlu^  vessel. 


24G  MAUT'I'DIF.   LEGISLATIOX. 

Rule  II.  Damage  hy  Jettison. — Damage  clone  to  goods  or  mer- 
chandise bv  water  wliicli  unavoidably  goes  down  a  ship's  hatches 
opened,  or  otlier  opening  made,  for  the  purpose  of  making  a  jettison 
shall  be  made  good  as  General  Average,  in  case  the  loss  by  jettison 
is  so  made  good. 

Damage  done  by  breakage  and  chafing,  or  otherwise  from  de- 
rangement of  stowage,  consequent  upon  a  jettison,  shall  be  made 
good  as  General  Average,  in  case  the  loss  by  jettison  is  so  made 
good. 

Rule  III.  Extinfjuisliincj  Fire  on  Shiphoard. — Damage  done  to 
a  ship  and  cargo,  or  either  of  them,  by  water  or  otherwise,  in  ex- 
tinguishing a  fire  on  board  the  ship,  shall  be  General  Average ; 
except  that  no  compensation  be  made  for  damage  done  by  water  to 
packages  which  have  been  on  fire. 

Rule  IV.  Cutting  avaij  WrecJc. — Loss  or  damage  caused  by 
cutting  away  the  wreck  or  remains  of  spars,  or  of  other  things 
which  have  previously  been  carried  away  by  sea  peril,  shall  not  be 
made  good  as  General  Average. 

Rule  V.  Yoluntarn  Stranding. — When  a  ship  is  intentionally 
run  on  shore  because  she  is  sinking  or  driving  on  shore  or  rocks, 
no  damage  caused  to  the  ship,  the  cargo  and  the  freight,  or  any  or 
either  of  them,  by  such  intentional  running  on  shore  shall  be  made 
good  as  General  Average. 

Rule  VI.  Carri/ing  Press  of  Sail. — Damage  occasioned  to  a 
ship  or  cargo  by  carrying  a  press  of  sail  shall  not  be  made  good  as 
General  Average. 

Rule  VII.  Port  of  Refuge  Expenses. — When  a  ship  shall  have 
entered  a  port  of  refuge  under  such  circumstances  that  the  expenses 
of  entering  the  port  are  admissible  as  General  Average,  and  when 
she  shall  liave  sailed  thence  with  her  original  cargo  or  apart  of  it, 
the  corresponding  expenses  of  leaving  such  port  shall  likewise  be 
admitted  as  General  Average  ;  and,  whenever  the  cost  of  discharging 
cargo  at  such  port  is  admissible  as  General  Average,  the  cost  of  re- 
loading and  stowing  such  cargo  on  board  the  said  sliip,  together 
with  all  storage  charges  on  such  cargo,  sliall  likewise  be  so 
fidinittcd. 

Ilri.i-,    \'lff.     W'liiirx    mid    '^f(li|ll(■|llln(•r    r,f     Crem    in    Port    of 


INTERNATIONAL    LAW    OF   GENERAL   AVEnAOE.         247 

Bcfuge. — When  a  ship  shall  have  entered  a  port  of  refuge  under 
the  circumstances  defined  in  Rule  VII.,  the  wages  and  cost  of 
maintenance  of  the  master  and  mariners  from  the  time  of  entering 
such  port  until  the  ship  shall  have  been  made  ready  to  proceed 
upon  her  voyage  shall  be  made  good  as  General  Average. 

Rule  IX.  Damage  to  Garrjo  in  Blscharginrj. — Damage  done  to 
cargo  by  discharging  it  at  a  port  of  refuge  shall  not  be  admissible 
as  General  Average,  in  case  such  cargo  shall  have  been  discharged 
at  the  place  and  in  tlie  manner  customary  at  that  port  with  ships 
not  in  distress. 

Rule  X.  Contributory  Values. — The  contribution  to  a  General 
Average  shall  be  made  upon  the  actual  values  of  the  property  at 
the  temiination  of  the  adventure,  to  which  shall  be  added  the 
amount  made  good  as  General  Average  for  property  sacrificed ; 
deduction  being  made  from  the  shipowner's  freight  and  passage - 
money  at  risk  of  such  port  charges  and  crew's  wages  as  would  not 
have  been  incurred  had  the  ship  and  cargo  been  totally  lost  at  the 
date  of  the  General  Average  act  or  sacrifice  ;  deduction  being  also 
made  from  the  value  of  the  property  of  all  charges  incurred  in 
respect  thereof  subsequently  to  the  arising  of  the  claim  to  General 
Average. 

Rule  XI.  Loss  of  Frei(j]tf. — In  every  case  in  which  a  sacrifice 
of  cargo  is  made  good  as  General  Average,  the  loss  of  freight,  if 
any,  which  is  caused  by  such  loss  of  cargo  shall  likewise  be  so 
made  good. 

Rule  XII.  Ainmmt  to  he  made  good  for  Cargo. — The  value  to 
be  allowed  for  goods  sacrificed  shall  be  that  value  which  the  owner 
would  have  received  if  such  goods  had  not  been  sacrificed. 

The  report  having  been  read  by  Mr.  J.  Rand  Baily,  ]\Ir. 
E.  E.  Wendt,  of  London,  moved  : — 

'That  the  York  and  Antwerp  Rules  be  adopted  and  filed  with 
the  minutes  of  this  congress.' 

The  motion  was  seconded  by  IMr.  Richard  Lowndes,  of  Liver- 
pool, and  carried  unanimously. 

Lord  O'Hagan,  in  the  course  of  his  valedictory  address  to  the 
conference,  remarked  that  '  he  had  been  present  at  the  deliberations 
of  the  legislative    bodies  of  the  gi-eater  number  of  tlie  states  of 


248  MARITDIE    LEOISI-ATIOX. 

Europe,  but  in  no  assembly  liad  lie  ever  heard  questions  debated 
with  such  earnestness,  such  cogency  of  logic,  and  such  ease  and 
}3recision  of  language  as  in  the  General  Average  committee-room. 
Nor  was  the  reason  far  to  seek ;  for  in  that  room  were  gathered 
together  those  who  knew  most  about  the  subject  in  hand,  and 
whose  interests  would  be  most  affected  by  the  issue  of  the  dis- 
cussions.' 

The  fifth  annual  conference  of  the  Association  for  the  reform 
and  codification  of  the  Law  of  Nations  broke  up  on  Monday, 
September  3,  1877,  and  on  that  day  the  following  letter  was  for- 
warded by  the  representatives  of  Lloyd's,  before  leaving  Antwerp, 

to  the  secretary  : — 

'  Antwerp  :  September  3,  1877. 

'  Sir, — We,  the  representatives  deputed  by  the  Committee  of 
Lloyd's,  on  the  invitation  of  the  Committee  of  your  Association,  to 
attend  the  meetings,  this  day  terminated,  of  the  General  Average 
section  of  the  conference,  request  that  it  may  appear  in  the  protocol 
of  the  proceedings  that  we  expressly  declared  that  we  had  no  in- 
tention, by  our  presence  or  otherwise,  to  accept,  on  behalf  of  our 
constituents,  the  decisions  arrived  at  by  the  section,  but  that,  on 
the  contrary,  we  protested,  on  behalf  of  the  Committee  of  Lloyd's, 
against  certain  of  those  decisions,  and  reserved  the  rights  of  our 
constituents  in  every  respect. — We  are.  Sir, 

'  Your  obedient  Servants, 

f  F.  B.  B.  Natusch, 
(Signed)  <    ^  ^^  , 

^      ^  L  Joseph  Hillman. 

'  II.  D.  Jencken,  Esq.' 

It  can  scarcely  be  a  matter  of  surprise  that,  as  soon  as 
serious  steps  were  taken  to  give  practical  effect  to  tlie 
York  and  Antwerp  Rules  by  tlieir  embodiment  in  charter 
parties,  bills  ol'  ladinij-,  nnd  policies  of  insurance,  an  op- 
position was  organised  ])y  those  who  either  were  antago- 
nistic to  all  changes  or  had  been  induced  by  those  members 
f>^  tlio  Commit ( Of  of  Tilr»vd's  who  tliou^dit  that  claims  of 
(ieiieral  Averages  might  be  got  ]'id  of  altogether,  to  join 
in  the  general  outcry  against  this  innovation. 


INTERNATIONAL  LAW   OF   GENERAL   AVERAGE.         249 

It  cannot,  however,  be  of  any  lasting  good  to  r('pul)lisli 
the  nuiUifarioiis  correspondence  which  the  public  press  con- 
tained on  this  snbject  after  the  conference  and  until  March 
1879,  because  only  arguments  were  advanced  which  had 
over  and  over  again  been  stated  and  refuted,  and  it  is, 
therefore,  my  intention  to  confine  myself  to  print  in  the 
following  pages  only  so  much  from  the  reports  presented 
at  different  congresses  of  the  Association  for  the  Eeform 
and  Codification  of  the  Law  of  Nations  as  will  be  neces- 
sary in  order  to  bring  the  history  of  this  movement  down 
to  the  present  day. 

I  may,  therefore,  begin  with  c[uoting  from  the  Eeport 
of  the  General  Average  Committee  presented  to  the  Con- 
ference at  Frankfort-on-Main  on  August  21,  1878,  which 
commenced  by  recapitulating  some  historical  facts  to  the 
above  referred  to  concluding  resolution  at  the  Antwerp 
Congress,  and  then  proceeded  as  follows  :  — 

In  pursuance  of  this  direction,  this  Association  has  since  that 
date  employed  all  the  means  at  its  disposal  to  bring  the  matter 
before  the  Governments  of  the  different  European  states  and  to 
stimulate  the  action  of  the  various  local  committees  which  have 
been  formed  at  the  principal  European  ports  for  the  purpose  of 
insuring  the  adoption  of  the  new  rules.  In  England  the  conduct 
of  this  question  was  entrusted  in  the  first  instance  to  the  General 
Shipowners'  Association.  Early  in  May  the  General  Shipowners' 
Association  convened  a  meeting  of  shipowners,  underwriters  and 
others  and  invited  them  to  form  a  committee.  On  May  30  a 
general  meeting  was  held  at  the  Cannon  Street  Hotel,  and,  a 
committee  having  been  formed,  the  following  resolutions  were 
passed : — 

1.  'That  in  the  opinion  of  this  meeting  it  is  desirable  that 
the  York  and  Antwerp  Rules  of  General  Average  be  carried  into 
operation.' 

2.  'That   in   the   opinion  of  this  meeting  the  most  effectual 


230  MARITIME    LEGISLATION. 

mode  of  procedure  will  be  by  n  general  agreement  on  the  part  of 
shipowners,  merchants,  and  underwriters  to  insert  in  bills  of  lading 
and  charter-parties  the  words,  '•  General  Average,  if  any,  payable 
according  to  York  and  Antwerp  Rules,''  and  in  policies  of  insurance 
to  add  to  the  foreign  General  Average  clause  the  words,  "  or  York 
and  Antwerp  Rules,'"  so  that  the  clause  will  run  thus  :  "  General 
Average  payable  as  per  foreign  adjustment  (or  custom)  or  York 
and  Antwerp  Rules,  if  so  made  up."  ' 

3.  '  That  a  definite  date  should  be  fixed  for  the  proposed 
change ;  and  the  date  recommended  by  this  committee  is  January 
1,  1879.' 

The  committee  has  adopted  the  name  of  the  '  English  Central 
Committee.'  It  has  issued  a  report,  and  its  action  has  been  most 
energetic.  Steps  have  been  taken  to  place  in  the  hands  of  every 
shipowner,  underwriter,  and  merchant  in  Great  Britain  a  copy  of 
the  report. 

It  is  satisfactory  to  be  able  to  state  that  a  large  number  of 
underwriters,  shipowners,  and  merchants  have  already  given  in 
their  adhesion,  and  it  is  confidently  believed  that  by  the  close  of 
this  year  the  rules  will  be  all  but  universally  adopted. 

Whilst  the  English  Central  Committee  has  thus  with  untiring 
perseverance  pursued  its  course,  supported  by  the  Shipowners' 
Association,  the  Chamber  of  Shipping  and  the  powerful  commercial 
and  shipping  interests  centred  at  Liv^erpool,  the  maritime  states  of 
the  Continent  and  the  great  maritime  ports  of  the  United  States 
have  not  been  behindhand  in  evincing  a  lively  interest  in  what 
was  doing.  A  brief  summary  of  what  has  been  done  will  now  be 
furnished. 

Germanij. — The  i^remen  Committee  on  General  Average  has 
been  very  industrious.  On  October  30,  1877,  the  President  of 
the  German  Branch  Association,  llerr  II.  H.  Meier,  addressed  a 
memorial  1o  tlic  Chancellor  of  the  fJerman  Empire  (Prince  Bis- 
marck), calling  attention  to  the  desiralileness  of  having  the  York 
and  Antwerp  Rules  introduced  into  the  (ierman  Commercial  Code. 
Tiiis  liiciiioi-ial  was  rollnwcd  l)y  .'i  pctilioii,  dated  Maivh  IG,  1878, 
])resented  by  the  Internal  ioiial  Traiispdvt  Insurance  Association  of 
lierlin  to  the  German  Reichstag,  i)rayiiig  that  the  law  of  Germany 


INTERNATIONAL    LAW    OF   GKNLIJAL   AVERAGE.         201 

iniglit  be  ultored  by  adopting  (with,  of  course,  necessary  modifica- 
tions) the  York  and  Antwerp  llules ;  finally,  the  delegates  of  the 
North  (u'nuan  ports  and  commercial  cities  have  ])resented  a 
memorial,  dated  IMay  22,  1878,  to  the  German  Government, 
a])proviug  and  recommending  the  adoption  of  these  rules.  Ac- 
cording to  communications  received  from  HeiT  Theodor  Hach,  it 
.appears  that  the  coui'se  iiiiendeil  to  !)(>  pursued  by  llie  (Jerman 
Branch  Committee  is  to  follow  the  lead  of  England,  but  not  to 
talvo  the  initiative. 

The  XcfJierlands. — This  wealthy  maritime  state,  with  its  vast 
shipping  interests,  has  been  likewise  active.  At  the  Antwerp 
Conference  the  Shipowners'  and  Underwriters'  Associations  and 
the  great  llandehmaaUcliappij  of  Holland  were  represented  by 
Dr.  Rahusen,  who  took  a  prominent  part  in  the  proceedings.  In 
the  month  of  January  1878  a  report'  on  the  York  and  Antwerp 
Rules,  drawn  up  by  Dr.  Rahusen,  Avas  presented  to  the  Dutch 
Committee  at  Amsterdam  and  adopted,  and  at  a  meeting  held  in 
that  month  the  following  resolutions  w^ere  voted  : — 

1 .  '  That  it  is  highly  desirable  for  shipowners  and  underwriters 
that  the  York  and  Antwerp  Rules  be  adoj^ted  by  all  maritime 
nations.' 

2.  '  That  this  Committee  address  the  Dutch  Government  and 
state  to  it  the  usefulness  of  the  adoption  of  these  rules  to  Holland 
and  other  maritime  nations.' 

Subsequently  a  memorial  was  addressed  to  the  Government  of 
the  Netherlands  by  the  members  of  the  Dutch  committee,  calling 
attention  to  the  York  and  Antwerp  Rules  and  recommending  that 
steps  should  be  taken  for  embodying  them  in  the  commercial  code 
of  that  country. 

Behjium. — In  this  country,  since  the  date  of  the  September 
Conference,  great  activity  has  been  displayed  in  regard  to  the  rules. 
The  '  Societe  Commercielle  et  Industriclle  '  of  Antwerp,  wdiich  at 
present  has  taken  the  place  of  the  extinct  Chamber  of  Commerce, 
has  energetically  taken  up  this  matter.  Early  in  the  year  a  com- 
mittee was  appointed,  consisting  of  Messrs.  Th.  C.  Engels,  E.  van 

^  Verslag  van  de  Vergaderingen  over  de  Internationale  Avarij  grosse 
Begeling,  gchoudcn  te  Antweri^en,  door  E.  N.  Bahuscn. 


2r,2  MARITIME   LEGISLATION. 

Peborgh  and  G.  Berdolt,  to  take  steps  to  bring  the  sultject  to  tlio 
attention  of  the  Government  of  that  country.  The  committee  has 
placed  itself  in  communication  with  M.  Bara,  Minister  of  Justice 
for  Belgium,  and  has  called  his  Excellency's  attention  to  the  York 
and  Antwerp  Rules,  suggesting  that  the  '  Code  de  Commerce '  of 
Belgium  might  be  altered  so  as  to  embody  tliose  rules.  The 
Minister,  we  are  informed,  has  given  a  favourable  reply  and 
jDromised  to  have  this  question  investigated. 

Sweden  and  Norway  and  DenmarTi} — All  these  three  countries 
were  represented  at  the  Antwerp  Conference.  At  the  seaports  of 
Copenhagen,^  Gothenburg,  and  Cliristiania  committees  have  since 
been  formed  for  the  purpose  of  bringing  this  matter  before  their 
respective  Governments.  It  is  understood  that  their  request  is 
sure  to  meet  with  a  favourable  reception.  For  the  present,  the 
measures  taken  by  these  Governments  in  passing  a  common  law  on 
bills  of  exchange  have,  it  is  understood,  absorbed  their  entire 
attention,  and,  until  the  report  of  the  International  Committee 
on  Bills  of  Exchange  has  received  the  sanction  of  the  Legislatui-e  of 
these  kingdoms,  the  question  of  creating  a  common  law  for  General 
Average  losses  will  have  to  remain  in  abeyance. 

Whilst  these  active  measures  have  been  taken  in  the  states 
named,  a  lively  interest  in  tliis  question  has  been  evinced  in 
Austria^  the  matter  having  been  submitted  to  the  Government  of 
that  Empire  by  the  Consul-General,  the  Chevalier  Dr.  Karl  von 
Scherzer. 

In  Trance  the  attention  of  the  Ministry  has  likewise  been 
directed  to  this  question,  the  Government  of  the  Netherlands  having 
Jjeen  requested  by  the  French  Government  to  furnish  them  with  a 
i-eport  on  the  York  and  Antwerp  Ilules.  M.  de  Courcy,  of  l\aris, 
has  reported  most  fixvoural)ly  on  these  rules,  pointing  out  that,  as 
regards  Italy  and  France,  their  adoption  will  not  prove  an  insur- 
iiiountaldc  difnciilty  ;  Ihat,  in  fact,  these  rules  constitute  a  fair  com- 


'  Sec  Reports  of  Hcrr  Axel  Win^jo,  Dccoinber  1877. 

'^  Mr.  L.  M.  llvidt,  of  Cojjonliafjcu,  has  hy  loltor  furnished  .a  valnahle 
Kurnmary  of  the  law  in  Denmark  ;  cxitressinf^  liis  Ijelicf  tliat,  as  (lie  York  and 
Antwcrii  Rules  only  slij^litly  differ  from  tlic  law  of  Dciuniiik,  tlicir  adoption 
may  be  regarded  as  all  but  certain. 


IXTERNA'IIDXAL   LAW    OF   GENERAL   AVEltAGK.         L>o3 

promise  between  the  English  and  Conliuontal  systems.  Valual^lo 
contriljutious  on  tliis  question  have  also  been  made  by  J\Ir.  V. 
Labraque  IJordenave, ' 

rniied  ,'Statt'S  uf  America. — Having  thus  far  given  an  account 
of  what  has  been  done  in  Europe,  it  becomes  necessary  to  state  the 
course  that  has  Ijeen  pursued  in  the  United  States  of  America. 
At  the  Antwerp  Conference  the  Chamber  of  Commerce  of  New  York 
and  the  Boards  of  Underwriters  of  that  city  and  New  Orleans  were 
ably  represented  by  Mr.  F.  R.  Coudert;  the  Boston  and  Phila- 
delphia Underwriters'  Associations  having  communicated  by  letters 
their  views  in  regard  to  the  adoption  of  the  York  Rules.  The 
favourable  reception  of  the  York  and  Antwerp  Rules  in  that  country 
was  thus  in  part  assured,  and  the  hopes  originally  entertained  as  to 
their  approval  there  have  been  fully  realised.  Mr.  F.  R.  Coudert, 
in  his  report '^  on  the  York  and  AntweqD  Rules,  has  not  only  pointed 
out  the  utility  of  the  rules,  but  has  shown  that  practically  the  law 
of  the  United  States  recognises  the  principle  upon  which  they  are 
based. 

Several  influential  meetings  have  been  held  in  New  York, 
Boston,  and  Philadelphia,  at  which  substantially  these  rules  have 
been  approved  of.  The  Underwriters'  Associations  of  New  Orleans, 
and  the  Maritime  Board  of  Underwriters  of  Boston,  have  intimated 
that  they  are  prepared  to  follow  the  lead  of  England ;  the  Under- 
writers of  Philadelphia  have  adopted  these  rules  with  some  slight 
modifications. 

As  regards  the  British  Colonies,  letters  expressing  the  most 
lively  interest  have  been  received  from  Canada  (Quebec),  Australia 
(Sydney,  Melbourne,  Adelaide),  India  (Bombay,  Calcutta),  the 
Cape  of  Good  Hope  (Cape  Town),  and  Mauritius  (Port  Louis),  and 
also  from  Shanghai. 

The  only  countries  fi-oni  which  no  expression  of  opinion  has 
been  elicited  are  Spain  and  Portugal;  it  is,  however,  apprehended 
1  hat  these  countries  would  follow  the  lead  of  France,  and  in  France, 

'  '  llegles  cVYork  ct  cVAnvers  siu'  les  Avaries  Comimmes  '  {La  France 
Judicidire,  jnillet  1K78). 

*  ^Ir.  F.  Coudert's  Report  to  the  Chamber  of  Commerce  and  Board  of 
Marmc  Uuderwriters,  New  York,  November  1,  1877. 


2o-k  MARITIME   LEGISLATION. 

this  Association  has  been  infornied,  no  doubt  is  felt  that,  slioulJ 
the  English  Government  move  in  the  matter,  the  French  Govern- 
ment will  seriously  entertain  the  question. 

Having  thus  far  rendered  a  summary  of  what  has  been  done  in 
the  past  with  regard  to  the  adoption  of  the  York  and  Antwerp 
Rules,  it  mav  not  be  out  of  place  to  point  to  the  future. 

No  doubt  can  exist  but  that  the  shipowniug  interests,  supported 
bv  the  merchant  in  nearly  all  the  European  states,'  favour  the 
adoption  of  the  York  and  Antwerp  Rules.  The  necessity  of 
establishing  a  common  law,  or  rule,  has  become  most  urgent,  and 
the  only  resistance  to  the  introduction  of  a  uniform  system  at 
present  exists  in  the  Underwriting  Rooms  at  Lloyd's  and  some  of 
the  principal  Marine  Insurance  Companies  of  London.  The  decla- 
ration of  the  Committee  of  Lloyd's  Coi'jDoration,  that  it  is  desirable 
ultimately  to  abolish  General  Average  altogether,  explains  the 
cause  of  this  opposition.  This  suggestion  has  caused  alarm 
amongst  the  shipowners,  whose  property  would  be  imperilled  if 
the  losses  occasioned  by  voluntary  sacrifices  incurred  for  the  safety 
of  all — for  the  vessel  is  the  first  and  greatest  sufferer  in  all  cases 
of  accident  on  the  seas  (anchors,  masts,  sails,  &c.,  all  first  go  to 
save  the  property  and  crew) — were  burdened  on  the  ship,  and  the 
cargo  allowed  to  escape  scot-free.  Indeed,  of  such  grave  import- 
ance is  this  question,  in  the  face  of  the  active  competition  by  other 
maritime  states,  that  the  shipowner,  and  behind  him  the  merchant, 
it  is  true,  reluctantly,  have  had  to  face  their  old  friend  the  insurer 
and  make  him  understand  that  the  principal  parties  in  all  these 
questions  are  the  owner  of  the  ship  and  the  owner  of  the  cargo, 
and  that  an  underwriter  cannot,  without  imperilling  his  busi- 
ness, put  at  hazard  those  interests  which  the  shipowner  and  the 
merchant  regard  as  paramount. 

IIkuk  TiiEODOK  Hacii,  of  Bremen,  thereupon  moved:  'That 
fliis  Association  regards  with  gi-cat  satisfaction  the  progress  made 
ill  tin-  matter  of  llie  juloptioii  of  tin-  ^'o^k  mid  Antwerp  Rules  for 
til.'  iidjii^t  iiKiit    of  (iei\eral   Average  losses,  and  desires  to  express 

'  Reports  on  the  Antwerp  ('uiifcreiiee  cm  Cicnerul  Average  have  ajipeared 
in  the  following  languuge.s  :  Englih.h,  French,  Dutch,  Danish,  German,  Italian, 
and  Swedish. 


IXTERXATIONAL   LA.W   OF   (JEXERAL    AVlCllAGE.         2o5 

its  acknowleJgineuf  oft  ho  vuhiable  services  rendered  both  by  the 
committees  on  the  Continent  uud  in  the  United  States  of  America, 
and  by  the  English  Central  Committee  of  underwriters  and  sliip- 
o-.vners  during  tlie  past  year,  and  to  express  its  sense  of  approval 
of  the  energetic  measures  taken  by  the  P^nglish  Central  Committee 
to  carry  out  tliose  rules,  ami  it  adds  an  earnest  request  that  tlie 
connnittees  will  continue  their  labours.' 

The  resolution,  seconded  by  M.  E.NiiELS,  was  carried  unani- 
mously. 

Tu  the  following  year  (1870)  the  next  conference  of 
the  Association  was  held  in  the  Guildhall  of  the  city 
of  London,  and  the  most  interesting  part  of  the  Eeport 
of  the  General  Average  Committee  presented  there  on 
August  13  reads  thus  : — • 

The  course  of  action  adopted  by  the  Central  Committee  has  been 
to  issue  a  report  laying  the  case  distinctly  before  shipowners, 
merchants,  and  underwriters,  and  inviting  the  first-named  to  sign 
a  declaration  of  their  individual  approval  of  the  York-Antwerp 
Rules,  and  of  their  intention,  on  and  after  Janviary  1,  1870,  to 
insert  the  clause  above  referred  to  in  their  bills  of  lading  and 
charter  parties,  unless  under  exceptional  circumstances. 

This  invitation  has  been  largely  responded  to.  No  less  than 
789  steam  and  sailing  ship-owning  companies  or  firms,  representing 
2,296,085  tons,  or  more  than  two-fifths  of  the  entire  registered 
tonnage  of  Great  Britain,  have  signed  this  declaration.  The  new 
clause  has  likewise  been  adopted  by  a  large  proportion  of  the 
mutual  insurance  associations  of  Great  Britain. 

At  this  moment  the  York-Antweq?  clause  is  actually  in  force 
for  a  large  percentage  of  the  commerce  of  this  country ;  and  its 
adoption  is  extending  itself  every  day. 

No  practical  difficulty  has  been  found  on  the  part  of  under- 
writers; though  in  the  first  instance,  owing  to  the  unfiivourable 
attitude  taken  up  by  the  Committee  of  Lloyd's  and  by  influential 
])ersons  connected  with  one  or  two  insurance  companies  in  London, 
there  appeai'ed  to  be  some  danger  that  this  might  be  the  case. 


•2oG  MARITIME   LEGISLATION. 

Fro:n  the  first  the  Underwriters'  Association  of  Liverpool  cordially 
and  lovallv  supported  the  new  rules.  There  is  now  no  difficulty  in 
obtaining  insurances  at  Lloyd's  on  the  usual  terras.  We  are  in- 
formed that  no  extra  premium  has  in  any  instance  been  required. 
The  change,  as  a  matter  of  voluntary  contract,  is  now  quietly  and 
steadily  extending  itself,  and  opposition  is  rapidly  dying  away. 

In  this  country  it  so  happens  that  the  proposed  change  is  greatly 
facilitated  by  the  present  condition  of  the  law,  as  distinguished 
from  the  practice,  of  General  Average.  Principles  have  been  laid 
down  by  the  courts  which  have  not  yet  been  completely  carried 
out  in  practice,  but  which  are  gradually  asserting  their  supremacy, 
and  by  degrees  transforming  our  practice,  as  point  after  point  is 
brought  before  the  attention  of  the  Judges.  The  principles  thus 
enunciated  are  precisely  those  which  the  York- Antwerp  Rules  are 
founded  on ;  the  practices  thus  undergoing  the  gradual  process  of 
being  broken  down  are  precisely  those  which  the  rules  strive  to 
change.  The  rules,  therefore,  are  in  no  respect  adverse  to  English 
law ;  and  it  may  perhaps  be  regarded  as  only  a  question  of  time, 
whether  our  vicious  practices  will  be  first  reformed  by  the  Courts  or 
by  the  voluntary  adoption  of  the  York- Antwerp  Rules. 

The  progress  made  towards  the  adoption  of  the  York- Antwerp 
Rules  on  the  continent  of  Europe  and  in  trans-oceanic  states  may 
be  briefly  summarised  as  follows  : — 

In  Norway  and  Sweden,  more  especially  the  former  country, 
the  York- Antwerp  Rules  have  been  agreed  to  by  an  overwhelming 
majority  of  the  ship  and  steamship  owners  and  also  by  the  marine 
insurance  cluljs  and  companies  of  those  kingdoms. 

The  Danish  ship  and  steamship  owners  and  marine  insurance 
companies  have  adopted  a  resolution  approving  of  the  rules, 
whenever  their  use  does  not  clash  with  pre-existing  rights. 

The  German  Committee  has  reported  favourable  progress.  An 
imperial  commission  appointed  to  consider  the  question  of  their 
adoption  terminated  its  sittings  in  Fel)ruary  last  and  has  approved 
of  tliem.  Since  tliut  dale  the  ship  ;ind  sle;iniship  owners  of 
J'reiiicn  have  lUKMiinidusly  \-oted  their  adoption,  ;ind  the  concur- 
rence of  the  llambiirg,  Allon:i,  and  Stettin  shiiiowners  ;ind  nuuine 
insurance  companies  has  to  a  great  extent  been  secured. 


INTERNATIONAL   LAW   OF   GKNEllAL   AVERAGE.         2.-,7 

In  tlic  Nothprlr.ncls  the  adoption  of  the  rules  has,  subject  to 
some  minor  modilications,  been  secured. 

In  Belgium  the  '  Societe  Commerciale  et  Industrif'lle,'  which 
society  now  represents  in  that  country  the  former  Chambers  of 
Commerce,  has  voted  their  adoption  and  a  recommendation  of  their 
insertion  in  contracts  of  affreightment. 

The  marine  insurance  companies  of  Russia  and  Austria-Hungary 
and  some  of  the  French  and  great  .Swiss  insurance  companies  have, 
conjointly  with  the  countries  already  named,  agreed  (the  former  all 
but  unanimously)  to  recognise  the  York-Antwerp  Rules  in  settle- 
ments of  General  Average  losses. 

In  France  and  Italy  some  shipowners  have  evinced  a  spirit  of 
opposition,  the  clause  contained  in  the  codes  of  these  countries 
limiting  the  contribution  to  one-half  of  the  value  of  the  ship  being 
deemed  too  favourable  to  the  shipowners  to  be  relinquished  at 
present.  Tlie  important  Chamber  of  Commerce  of  Lyons  has,  how- 
ever, sent  in  its  unqualified  approval  of  the  rules,  thus  proving 
that,  at  all  events,  a  powerful  section  of  the  merchants  of  France 
favours  the  change. 

As  regards  the  British  colonies,  those  of  British  North  America 
have  to  a  great  extent  approved  and  adopted  the  rules.  The 
Melbourne  Chamber  of  Commerce  and  the  Shipowners'  Society  of 
that  city  have  likewise  approved  of  them.  In  our  East  Indian 
possessions  foreign-going  vessels  are  all  but  exclusively  in  the  hands 
of  British  shipowners.  The  marine  insurance  companies  of  England 
transact  the  whole  of  the  insurance  business  of  India,  and  thus  the 
action  of  those  dependencies  is  regulated  entirely  by  that  of  the 
capitalists  in  the  home  country. 

The  leading  insurance  companies  of  the  United  States  of  America 
have  agreed  to  recognise  the  rules,  and  upwards  of  one  hundred  of 
the  great  ship  and  steamship  owning  firms  have  assented  to  in- 
serting them  in  their  bills  of  lading  and  charter-parties  The 
Chambers  of  Commerce  of  New  York  and  San  Francisco  have,  in 
opposition  to  this  favourable  movement,  voted  by  small  majorities 
against  their  adoption,  whilst  the  Board  of  Trade  of  Baltimore  has 
approved  of  them. 

A  favourable  feature  in  the  course  of  the  progress  made  to- 

S 


258  MARITIME   LEGISLATION. 

wards  the  universal  adoption  of  the  rules  is  the  fiict  that,  without 
public  announcement  or  subscribing  to  any  declaratory  document 
of  assent,  the  ship  and  steamship  owners  and  merchants  in  different 
countries  are  inserting  them  in  their  contracts  of  affreightment. 
A  movement  so  widespread,  including  many  countries  and  affect- 
ing- the  interests  of  commercial  and  shipping  men  in  all  parts  of 
the  world,  could  hardly  be  expected  to  take  place  without  interfer- 
incr  with  interests  more  or  less  affected  by  the  change.  Hitherto 
the  resistance  offered  in  some  quarters  has  been  vastly  overbalanced 
bv  the  success  obtained  in  other  parts ;  and  a  reasonable  hope  may 
be  entertained  that  at  no  very  distant  period  the  York- Antwerp 
Rules  will  have  accomplished  a  complete  change,  in  all  the  great 
commercial  countries  of  the  civilised  world,  in  this  branch  of  mari- 
time law. 

Having  thus  reported  what  has  been  done  in  the  interval 
between  the  meeting  at  Antwerp  and  the  present  meeting,  we  may 
be  allowed  to  say  a  few  words  on  the  question,  what  steps  may 
with  advantage,  in  our  opinion,  be  taken  now  in  furtherance  of 
the  object  before  us. 

There  can  be  no  doubt  that  the  York-Antwerp  Ivules  constitute 
— though  by  far  the  most  important  and  difficult  step — yet  a  step 
only  towards  an  international  law.  The  rules  deal  only  with  a 
portion  of  the  subject.  There  should,  eventually,  be  an  Inter- 
national Code,  dealing  with  the  whole  matter.  The  framing  of 
such  a  code  is  now,  accepting  the  York- Antwerp  Rules,  a  matter 
of  no  great  difficulty.  The  fundamental  principle  of  the  law  is 
identical  in  all  countries ;  there  is  no  dispute  or  difference  as  to 
the  more  important  instances  to  which  this  principle  is  applied ; 
what  differences  of  detail  at  present  exist  are,  substantially,  now 
settled  by  the  York-Antwerp  Rules.  Thus  the  work  of  codifica- 
tion would  seem  to  be  little  more  than  the  expressing  in  precise 
and  clear  language  of  conclusions  already  settled,  a  declaration, 
not  a  change,  of  the  law. 

Nevertheless,  it  fipiicai-s  by  no  means  clear  that  it  would  be 
judicious,  at  the  present  stage,  lo  ])roceed  forthwith  to  draw  up 
such  a  code.  Tt  would  be  1)etter,  in  our  opinion,  first  to  consolidate 
and  extend  the  adoption  of  the  York-Antwerp  Rules  as  they  stand. 


IXTERXATIONAL   LAW   OF   r.ENEIlAL   AVET^AGE.         ^r,^) 

A  fi'W  years'  ])mctical  experience  of"  tlie  workin<if  of  these  rules,  in 
}is  many  countries  as  can  In'  induced  to  adopt  tluMn,  would,  in  tlio 
first  phice,  be  of  itself  so  inucli  clear  gain  and  would,  in  the  second 
place,  render  the  framing  of  an  International  Code  so  much  easier, 
that  its  success,  and  eventual  adoption,  generally,  if  not  universally, 
might  be  regarded  as  certain. 

For  these  reasons  we  venture  to  think  that  the  most  judicious 
course  to  be  taken  this  year  is  to  content  ourselves  with  some 
general  expression  of  opinion,  such  as  may  have  the  effect  of 
stimulating  and  extending  the  movement  in  the  direction  in  which 
it  is  going  on,  recommending,  if  possible,  to  other  countries  the 
line  of  action  which  is  working  so  well  in  England,  pointing,  per- 
haps, to  a  code,  as  something  to  be  aimed  at  in  the  future,  but  not, 
for  the  present,  attempting  to  go  beyond  the  York-Antwerp  Uules. 

The  secretary  also  laid  upon  the  table  two  papers  upon  the 
York- Antwerp  Rules,  written  respectively  by  Dr.  W.  Lewis,' 
Professor  in  the  University  of  Berlin,  and  Mr.  Dexter  H.  Walker, 
of  New  York. 

Herr  H.  H.  Meier,  of  Bremen,  President  of  the  North  German 
Lloyd,  observed  that  in  Germany  people  were  fairly  agreed  as  to 
the  merits  of  the  York-Antwerp  Rules,  and  the  rules  had  made 
their  way  in  practice  too,  although  doubts  were  felt  by  some 
whether  the  provisions  of  the  law  would  not  override  the  contract 
of  the  parties.  In  his  opinion  the  rules  had  everywhere  so  far 
asserted  their  right  to  general  adoption  that  to  desist  from  further 
action,  though  only  for  a  time,  would  be  an  excess  of  caution.  He 
thought  that  the  moment  had  arrived  when  the  English  Secretary 
of  State  for  Foreign  Affairs  might  be  asked  to  use  his  influence  in 
bringing  about  a  conference  of  the  seafaring  nations  with  a  view 
to  an  international  code  of  General  Average  being  framed. 

Mr.  John  Glover,  Chairman  of  the  English  Central  Committee 
lipon  General  Average,  considered  that  Herr  Meier  had  acted 
wisely  in  not  moving  a  resolution  in  accordance  with  his  views. 

'  This  treatise,  which  gives  the  history  of  the  General  Average  question 
and  its  literature  and  also  contains  an  enlightened  critique  of  the  York-Ant- 
werp Rules,  together  with  some  valuable  reflections  upon  the  best  mode  of 
effecting  the  assimilation  of  the  laws  of  different  nations,  is  to  be  found  printed 
in  full  in  the  Zcitschriff  fur  Haudrlsrcc/if,  vol.  xxiv.— Ed. 

s  2 


2G0  MARITIME   LEGISLATION. 

The  opposition  of  Lloyd's  in  Englfind  liad  relaxed,  bnt  was  not 
entirely  overcome,  and  it  was  desirable  to  let  that  opposition  die 
ont  altoo-ether  before  trvinw  to  set  the  Governments  in  motion. 
The  time  of  which  Mr.  Meier  spoke  was,  no  donbt,  not  far  distant, 
but  its  arrival  would  be  retarded  by  an  undue  eagerness  to  press 
or  ward. 

Dr.  E.  N.  Rahusen,  of  Amsterdam,  counsel  to  the  Neder- 
landsche  Handel smaatschappij,  spoke  to  the  same  effect,  and  said 
that  the  law  should  follow,  rather  than  lead,  custom.  He  had 
often  encountered  the  York- Antwerp  Rules  in  practice  ;  this  showed 
that  the  proper  kind  of  propaganda  was  actively  going  on.  He 
could  not  doubt  that  the  justice  and  expediency  of  the  rules  would 
eventually  make  themselves  felt  even  at  Lloyd's.  He  was  in  a 
position  to  state  on  the  best  authority  that  there  would  be  no 
difficulty  in  effecting  the  necessary  changes  in  the  law,  so  far  as 
Holland  was  concerned. 

M.  Theodore  Engels,  of  Antwerp,  President  of  the  Belgian 
Llovd,  stated  that  he  was  able  to  give  the  same  assurance  with 
regard  to  Belgium.  The  subject  had  been  broached  to  M.  Bara, 
the  Belgian  Minister  of  Justice,  who  had  warmly  approved  of  the 
rules  and  of  the  movement.  He  instanced,  as  showing  the  equity 
of  the  rules,  that  in  England  they  were  considered  too  favourable 
to  the  shipowner,  in  France  the  contrary.  It  seemed  to  him  that 
the  Association  should  jealously  watch  for  the  earliest  opportunity 
of  taking  further  action. 

Mr.  H.  J.  Atkinson,  Chairman  of  the  Hull  Chamber  of 
Shipping,  gave  an  amusing  account  of  the  rapidity  of  the  progress 
made  by  the  rules  at  Hull.  When  they  had  once  become  fairly 
known,  only  one  large  merchant  and  one  small  one  had  refused  to 
adopt  them,  and  the  fonner  of  the  two  had  soon  found  it  prudent 
to  make  his  submission. 

M.  E.  van  Eeten,  Delegate  of  the  Societe  Commerciale  et 
Industrie-lie  ( =  Chamber  of  Commerce)  of  Antwerp,  touched  upon 
the  present  relation  of  Antwerp  to  the  ^"ork-Antwerp  Rules  and 
expressed  an  ()])iiiion  that  without  legislative  enactment  the  rules 
would  soon  have  the  force  of  law  in  Antwerp.     He  said : — 

'  There  can  be  no  doubt  that  in  the  case  of  a  ship  arriving  at 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.         201 

Antwerp  with  the  York-Antwerp  clause  in  her  bills  of  lading  the 
General  Average,  if  any,  would  be  settled  according  to  the  rules. 
But  I  think  tluit  in  a  very  short  time  the  York-Antwerp  Rules 
will  he  ai)plied,  whether  there  be  a  clause  to  that  effect  in  the 
contract  of  affreightment  or  not.  My  reasons  for  saying  so  are 
these.  According  to  the  present  law  of  Belgium  the  contributory 
value  of  the  ship  is  one  half,  and  the  wages  and  provisions  of  the 
crew  during  the  vessel's  stay  at  a  port  of  refuge  are  not  admitted 
as  General  Average,  while  the  code  says  nothing  whatever  about 
the  apportionment  of  any  other  port  of  refuge  expenses.  Those 
expenses  have  so  far  been  regulated  by  the  local  custom ;  that  is 
to  say,  when  the  cargo  is  entirely  discharged  for  the  ship  to  be 
repaired,  the  cargo  alone  bears  all  the  expenses  of  landing,  ware- 
housing, and  re-shipping.  A  new  law  on  the  subject  of  General 
Average  has  already  been  voted  by  the  Chamber  of  Representatives 
and  has  been  recently  adopted  by  the  Senate.  According  to  the 
new  law  the  contributory  value  of  the  ship  will  be  her  entire  value 
at  the  port  of  destination,  and  the  wages  and  provisions  of  the 
crew  at  a  port  of  refuge  will  be  allowed,  but  again  nothing  is  said 
as  to  other  ports  of  refuge  expenses.  Now,  supposing  a  ship  to 
enter  the  port  of  Antwerp  without  the  York-Antwerp  clause  in 
her  bills  of  lading,  wages  and  provisions  having  to  be  admitted 
according  to  the  new  law,  it  would  evidently  be  unfair  to  continue 
to  saddle  the  cargo  with  the  expenses  of  landing,  storing,  and  re- 
shipping  and  with  its  share  of  the  wages  and  provisions  besides. 
It  will,  therefore,  be  necessary  to  change  the  local  custom  of 
Antwerp,  and  the  York-Antwerp  Rules  will,  no  doubt,  be  resorted 
to  and  soon  become  the  cust/om  of  Antwerp.' 

Mk.  J.  HoKNE  Payne,  of  London,  observed  that  the  justice  of 
the  rules  in  one  particular  had  lately  been  triumphantly  vindicated 
by  a  decision  of  the  Queen's  Bench  Division  of  the  English  High 
Court  of  Justice,^  by  which,  in  spite  of  the  inveterate  contrary 
practice  of  average  adjusters,  the  English  law  relating  to  port  of 
refuge  expenses  had  been  brought  into  harmony  with  No.  7  of  the 
rules. 

M.   Edouakd   Clunet,   of  Paris,   pointed    out    that    the    only 
'  Attivood  V.  ScUar  (L.  11.  4  Q.  B.  D.  342). 


262  MARITIME    LEGISLATION. 

radical  innovation  wbicli  the  adoption  of  the  rules  would  introduce 
iuto  the  laws  of  France  was  the  provision  contained  in  llule  X., 
to  which  the  French  shipowners  were  naturally  opposed,  seeing 
that  by  the  existing  code  the  contribution  of  the  ship  was  limited 
to  one  half  of  its  value. 

Captain  N.  Jacobsen,  of  Copenhagen,  reminded  tlie  meeting 
of  the  action  already  taken  by  the  German  Government  in  referring 
the  rules  to  an  imperial  commission  and  of  the  willingness  of  that 
Government  to  proceed  further  in  the  matter,  and  urged  that,  if 
the  Association  as  such  was  to  remain  quiescent  for  the  present, 
it  might  at  least  be  enjoined  upon  the  local  committees  to  seize 
the  earliest  opportunity  of  endeavouring  to  induce  their  respective 
Governments  to  countenance  and  actively  promote  the  movement. 

Mil.  Bkistoa^'E  (Chairman  of  the  Australian  and  New  Zealand 
Underwriters'  Association)  described  the  interest  which  the  rules 
had  awakened  in  the  colonies,  where  man}^,  he  said,  wished  to  see 
them  obtain  everywhere  the  force  of  law. 

Mr.  Mauley  HorKixs  (of  London),  Mr.  E.  H.  Caiter,  Delegate 
of  the  Central  Committee  on  General  Average  at  Cardiff,  and  Mr. 
Lawrekce  R.  Baily,  Delegate  of  the  Steamship  Owners'  Association 
of  Liverpool,  also  took  part  in  the  discussion,  which  closed  with 
seme  remarks  from  Sir  Travers  Taviss. 

It  may  be  imagined  with  what  satisfaction  I  read  at  the 
Conference  of  the  Association  on  Angust  2G,  1880,  at 
l)('rne,  the  following  report  : — 

At  the  request  of  the  executive  council  of  this  Association  I 
have  undertaken  to  report  to  this  conference  what  has  taken  place 
since  our  last  meeting  with  respect  to  the  international  law  of 
General  Average,  as  emljodied  in  the  York  and  Antwerp  Rules. 

And  I  lliiiik  it  is  a  uialtn-  of  sincere  eougrat  uhitioii  to  the 
members  of  this  Associat  i<iii  tliiil  I  :iiii  ;il»lc  to  reeoi'd  that  the  first 
judgments  (of  the  Queens  JJencii  and  the  Appeal  Courts)  in 
matters  (A'  Gi-neral  Average  not  only  ratified,  as  far  as  the  subject 
under  coiij-iderat  ion  was  eoneeiMied.  Ilie  |iiiiieipl(>  npon  whiehthat 
part  of  the  Y()\-k  and  .A  iil  wei'ii  liuies  was  based,  but    aetnally  pro- 


INTERNATIONAL   LAW    OF   GENERAL   AVERAGE.         203 

nounceil  tliul  the  custom  or  practice  which  for  at  least  eighty  years 
luid  prevailed  among  the  English  average  adjusters,  and  according 
to  which  they  adopted  a  contrary  system  of  adjustment,  was  at 
variance  with  the  common  hiw  of  England. 

The  case  in  which  this  satisfactory  result  was  attained  was  that 
of  Atwood  a.  Cellar,  which  came,  on  a  so-called  special  case, 
first  before  the  Queen's  Bench  Division,  consisting  of  Lord  Chief 
Justice  Cockburn  and  Justices  Mellor  and  Mauisty,  and  afterwards 
before  the  Court  of  Appeal,  consisting  of  the  Lords  Justices  liram- 
well,  Baggallay,  and  'Jliesiger. 

The  circumstances  under  which  it  arose  were,  that  the  ship 
'  Sullivan  Sawin,'  during  a  voyage  from  Savannah  to  Liverpool  in 
February  1877,  encountered  severe  weather,  which  compelled  the 
master  to  cut  away  the  foretopmast,  the  fall  of  which  having 
occasioned  further  damage  to  the  vessel,  he  was  forced  to  put  into 
Charleston  for  repairs.  These  could  not  be  effected  without  the 
discharge  of  a  portion  of  the  cargo,  and  the  expenses  thus  incurred 
for  landing,  warehousing,  and  re-shipping  the  same,  as  well  as  for 
pilotage  and  other  charges  paid  in  respect  of  the  ship,  were,  on 
arrival  at  Liverpool,  all  brought  into  the  General  Average  column 
by  our  friend  Mr.  Lowndes.  This  being  against  the  view  which 
the  members  of  the  Average  Adjusters'  Association  had  hitherto 
adopted,  and  according  to  which,  where  ships  have  put  into  port  to 
refit,  whether  such  putting  into  port  had  been  occasioned  by  a 
General  Average  sacrifice  or  a  Particular  Average  loss,  the  expense 
of  discharging  the  cargo  was  treated  as  General  Average,  the  ex- 
pense of  warehousing  it  as  Particular  Average  on  the  cargo,  and 
the  expense  of  the  re-shipment  of  the  cargo,  pilotage,  port  charges, 
and  other  expenses  incurred  to  enable  the  ship  to  proceed  on 
her  voyage,  as  Particular  Average  upon  the  freight,  the  principal 
underwriters  interested  on  the  cargo  agreed  to  contest  this  innova- 
tion upon  a  practice  of  more  than  eighty  years'  standing,  but  they 
were  disappointed  in  the  result. 

After  a  very  elaborate  argument  of  counsel  before  the  Queen  a 
Bench  Division,  it  was  only  Mr.  Justice  Manisty  who  stood  out  for 
the  old  practice,  whereas  the  nuijority  of  the  Court,  Lord  Chief 
Justice  Cockburn  and  Mr.  Justice  Mellor,  condemned  it  in  some- 


264  MARITIME   LEGISLATION. 

wliat  remarkable  terms ;  and  altliougli  the  limits  of  this  report 
will  prevent  me  from  giving  a  fnll  reprint  of  the  Lord  Chief 
Justice's  argument,  1  think  I  may  venture  so  much  as  to  quote  the 
m^ost  instructive  passages  verbatim. 

After  some  introductory  observations  his  lordship  says :  '  Two 
questions  present  themselves :  First,  what,  independently  of  this 
practice  of  average  adjusters,  is  the  principle  or  rule  of  law  applic- 
able to  the  case  ?  Secondly,  whether,  assuming  the  practice  to 
be  inconsistent  with  what  otherwise  should  be  the  law  having  sub- 
sisted for  so  long  a  time  it  must  be  taken  to  g-ive  the  rule  properly 
applicable  to  such  a  case ;  '  and  after  alluding  to  some  conflicting 
decisions  to  which  reference  had  been  made  in  the  course  of  the 
argument,  he  states:  — 

'  That  the  expenses  which,  according  to  the  practice  of  average 
adjusters,  are  thus  treated  as  Particular  Average,  should,  according 
to  legal  principles,  be  made  the  subject  of  General  Average,  appears 
to  me  to  flow  necessarily  from  the  fundamental  principle  on  which 
the  whole  doctrine  of  General  Average  rests,  namely,  that  all  loss 
which  arises  from  extraordinary  sacrifices  made  or  expenses  in- 
curred for  the  preservation  of  the  ship  and  cargo  must  be  borne 
proportionably  by  all  who  are  interested. 

'  The  contract  between  the  goods  owner  and  the  shipowner  on 
a  charter-party  or  a  bill  of  lading  being  for  the  conveyance  of  the 
goods  to  a  given  port,  there  occurs  in  the  course  of  the  voyage  a 
state  of  things  which  is  not  provided  for  by  the  contract. 

'  A  storm  arises,  the  vessel  is  in  danger,  but  a  port  is  within 
reach,  into  which,  in  the  common  interest  of  all  concerned,  it 
would  be  prudent  to  take  refuge,  or  it  becomes  necessary  to  cut 
away  a  mast,  and  as  a  consequence  of  so  doing  to  seek  an  inter- 
mediate port  in  order  to  replace  it.  Or  the  ship  sustains  damage 
from  till"  ^■i()l('llce  of  winds  or  waves,  which  renders  it  necessary 
for  the  coiiiiiiou  safl'ty  of  ship  and  cargo,  and  for  the  further  pro- 
secution of  llie  advi-nlure,  to  seek  a  port  at  which  repairs  which 
have  Ijccome  necessary  for  the  safe  prosecution  of  the  voyage  may 
}je  effected. 

'The  result  is  that,  in  theory  at  least,  a  new  arrangement  not 
cont-'-mplated  or  provided  for  by  the  original  contract,  takes  place 


INTERNATIONAL    LAW   OF   GENERAL   AVERAGE.         205 

between  tlie  partners,  wlio  in  theory,  as  formerly  in  fact,  must  bo 
supposed  to  l)t'  i)rest'nt  each  in  the  practice  of  modern  times  repre- 
sented by  the  master,  to  whom  the  interests  of  both  are  committed. 
If  we  could  suppose  both  parties  to  be  actually  present  and  under 
a  sense  of  imminent  danger  to  concur  in  the  necessity  of  seeking 
a  port  of  refuge,  but  discussing  the  question  as  to  how  the  ex- 
penses incidental  to  such  a  course  shall  be  borne,  what  arrangement 
could  be  more  reasonable  or  just  than  that  these  expenses,  being 
extraordinary  expenses  incurred  for  the  common  benefit,  should  be 
borne  in  common,  on  the  same  principle  as  that  which  has  been 
established  from  the  earliest  times  in  the  case  of  actual  jettison? 

'  Applying  this  principle  with  reference  in  the  first  place  to  the 
expenses  incurred  by  the  ship,  it  is  admitted  on  all  hands  that  the 
expenses  of  entering  the  port  of  refuge  should  be  carried  to  General 
Average.  Logically  it  would  seem  to  follow  that  as  the  coming 
out  of  port  is — at  least  where  the  common  adventure  is  intended 
to  be,  and  is  afterwards  further  prosecuted — the  necessary  conse- 
quence of  going  in,  the  expenses  incidental  to  the  later  stage  of  the 
proceeding  should  stand  on  the  same  footing  as  the  former.  The 
further  prosecution  of  the  voyage  was  in  the  contemplation  of  the 
parties,  or  of  the  master  representing  them  in  going  in  ;  the  coming 
out,  therefore,  must  equally  have  been  in  view  when  the  resolution 
to  go  in  was  formed.  But  it  is  said — and  it  is  upon  this  ground 
that  the  difference  between  these  two  sets  of  expenses  is  alleged  to 
be  founded — first,  that  it  is  the  shipowner's  duty,  under  his  con- 
tract, to  keep  the  ship  in  a  navigable  state,  and  consequently,  to 
repair  any  damage  she  may  have  sustained  ;  secondly,  that  when 
the  ship  lias  been  repaired,  it  is  the  owner's  duty,  under  his  con- 
tract, to  re-ship  the  goods  and  to  set  forth  again  on  the  voyage,  and 
to  that  end  to  incur  the  cost  of  quitting  the  port  and  of  employing 
a  pilot  or  a  tug  if  necessary.  The  whole  of  this  reasoning  appears 
to  me  to  be  based  on  an  assumption  altogether  fallacious.  The 
shipowner  is  not  bound  to  repair  for  the  purpose  of  carrying  on  the 
cargo,  nor,  having  repaired,  does  he  become  bound  to  re-ship  the 
cargo  and  complete  th(>  voyage  under  the  original  contract,  but  if 
bound  at  all  to  do  so,  is  bound  only  under  that  contract  as  modified 
by  the  altered  circumstances  of  the  case. 


2G0  MAIJTIME    LEGISLATION. 

'  Tlie  contract,  it  should  be  remembered,  expressly  exempts  tlie 
shipowner  from  performance  of  his  obligations  under  it,  when  per- 
formance is  prevented  by  perils  of  the  sea.  The  ship  having  be- 
come incapacitated  from  prosecuting  the  voyage,  and  performance 
of  the  contract  having  been  prevented  by  the  excepted  cause,  the 
shipowner  is  under  no  obligation,  so  far  as  the  goods  owner  is  con- 
cerned, to  repair.  He  cannot,  it  is  true,  expose  the  goods  of  the 
freighter  to  further  peril  by  persisting  in  carrying  them  on  if, 
having  the  opportunity  of  putting  into  a  port  of  refuge,  he  cannot 
or  will  not,  repair  the  ship ;  but,  if  he  chooses  to  forego  his  right 
to  freight,  he  may  repair  or  not,  as  may  best  suit  his  interest.' 
A  little  further  on  the  following  passages  occur : — 
'  In  legal  theory  we  must  suppose  the  parties  to  be  present.  In 
contemplation  of  law  the  master,  as  representing  both,  makes  for 
them  both  the  agreement,  which  it  is  reasonable  to  suppose  that,  if 
present,  they  would  have  made  for  themselves.  The  common  pur- 
pose is  twofold.  The  first  and  immediate  purpose  is  that  of  saving 
ship  and  cargo  by  bringing  both  into  harbour.  The  second  is  that 
of  repairing  the  ship  with  a  view  to  the  further  prosecution  of  the 
voyage,  if  such  repair  should  prove  reasonably  practicable,  with 
certain  reservations  on  the  part  both  of  the  shipowner  and  the 
goods  owner,  which  probably  may  lead  to  the  abandonment  of  the 
flirt  1  It 'r  prosecution  of  the  voyage.  The  second  of  these  pui*pose8 
iii\olves  several  subordinate  operations  and  expenses  incidental 
thereto.  The  state  of  the  ship  and  the  degree  of  damage  she  has 
sustained  have  first  to  be  ascertained.  To  eifect  this,  as  well  as  to 
do  the  necessary  repairs,  it  may  be  necessary  to  unship  the  cargo  ; 
to  prcstrve  the  goods  from  harm  they  will  have  to  be  warehoused. 
I'lie  r>'pair  to  the  ship  having  been  completed,  the  cargo  must  be  re- 
shipped.  Lastly,  all  things  having  been  completed,  theship  will  have 
1o  leave  tlie  port  and  ])ut  to  sea.  In  respect  of  each  of  these  stages, 
expenses  will  ii;i\ c  to  he  incurred  for  wliieli,  as  being  altogether  out- 
side flu?  original  contract,  that  contract  wholly  fails  to  provide.  They 
{ire  ext  raoi'dinjirv  expenses,  incni-i-ed  for  the  preservation  of  ship  and 
cargo,  and  in  I'lii-I  liernnce  of  llie  (•(umnon  adventure  under  circum- 
stances in  wliieli  I  lie  ^liipnnd  r.ii-'jD  woiilil  ol  lierwise  hav'e  ])erislied 
or  the  coiiiMion  ad\cnluie    would    lia\e    been  al)i'U})lly  brought  to  a 


INTtltNATIUNAL   LAW   OF   GENKUAL   AVERAGE.         i'07 

teniiinatioTi.  V]vm  wliom  should  tlie  expenses  of  these  different 
o[)erulions  fUll  ?  'I'lir  imictice  of  the  average  adjusters  makes  the 
unlcKidiii^-  of  the  car«z-<»  iiialter  of  (ieuenil  Average,  and  as  it  seems 
to  me  on  piMiieipl.'  rightly  so.  On  what  ground  the  distinction  be- 
tween the  cost  of  uiishii)])ing  the  cargo  and  of  warehousing  it, 
which  is  thrown  on  it  as  Particular  Average,  and  that  of  re-shipping, 
which  is  treated  as  Particular  Average  on  the  freight,  is  founded,  I 
wholly  fail  to  perceive.  Looking  to  the  common  purpose  for  which 
all  these  operations  are  ])erf(jrmed,  it  seems  only  reasonable  and 
just  that  the  expenses  should  be  borne  ratably  by  all  parties  con- 
cerned ;  in  other  words,  be  treated  as  General  Average,  so  far,  at  all 
events,  as  the  common  ])urpose  has  been  effected. 

'It  is  true  that  it  not  unfrequently  happens  that  the  primary 
purjiose  of  putting  into  port  having  been  accomplished,  the  ulterior 
purpose,  that  of  further  prosecuting  the  voyage,  fails.  There  may 
be  no  means  in  the  port  of  refuge  for  repairing  the  vessel.  The 
cost  of  repairing  may  be  so  great  as  not  to  make  it  worth  the 
owner's  while  to  repair  in  order  to  earn  the  freight.  As  regards 
the  alternative  of  transhipment,  there  may  be  no  opportunity  to 
tranship,  or  only  at  an  increased  rate  of  freight,  on  which  account 
the  shipowner  may  decline  to  tranship,  except  on  account  of  the 
goods  owner.  On  the  other  hand,  the  cargo  may  be  of  a  perishable 
nature,  or  it  may  be  so  damaged  that  it  cannot  be  carried  on  further 
without  becoming  worthless  ;  or  the  repairs  to  be  done  to  the  ship 
will  take  so  long  a  time  that  in  the  interest  of  the  goods  owner  the 
master  would  not  be  justified  in  detaining  the  goods,  but,  acting  as 
the  agent  of  the  latter,  becomes  bound  to  forego  the  right  of  carry- 
ing on  the  goods,  and  so  earning  the  freight,  and  must  deal  with 
them  in  the  interest  of  their  owner  alone.  In  such  cases  it  may 
well  be  that  only  the  expense  of  putting  into  the  port  of  distress 
could  properly  be  made  matter  of  General  Average,  and  that  ex- 
penses thus  incurred,  from  wliicli  no  benefit  results  to  the  common 
adventure,  should  be  trc^ited  as  Particular  Average  to  ship  or  goods, 
as  the  case  may  be.  But  we  are  here  dealing  with  a  case  in  which 
every  expense  has  been  incurred  with  a  view  to,  and  has  resulted 
in,  the  iurther  prosecution  of  the  common  adventure.  The  ship 
and  cargo  hnve  been  .saved  I'ram  destruction  by  being  brought  into 


2G8  MARITIME   LEGISLATION. 

port ;  the  ship  has  beeu  repaired,  the  cargo,  having  in  the  meantime 
been  preserved  by  being  warehoused,  has  been  re-shipped,  the 
voyao-e  has  been  resumed  and  brought  to  a  safe  conclusion,  and 
the  goods  have  been  delivered  ;  in  a  word,  the  common  purpose, 
the  fulfilment  of  the  contract  of  affreightment,  has  been  effected. 
But  how  has  this  result  been  brought  about  ?  By  the  series  of 
operations  which  have  taken  place  from  the  ship's  going  into  port 
to  her  putting  to  sea  again  inclusively.  But  the  whole  of  these 
operations  were  necessary  to  the  resumption  of  the  voyage ;  the 
expenses  of  carrying  them  out  were  each  of  them  incurred  in 
furtherance  of  the  common  purpose.  Not  being  expenses  within 
the  scoj)e  of  the  original  contract,  but  extraordinary  expenses  in- 
curred for  the  common  benefit  of  ship  and  cargo,  the  conclusion 
appears  to  me  irresistible  that,  with  the  exception  of  the  cost  of 
repairs  to  the  ship,  all  these  expenses  should  be  charged  to  General 
Average.' 

Then,  after  referring  to  one  of  the  reported  cases,  and  to  the 
American  and  other  laws,  the  judgment  proceeds  : — 

'  We  have  next  to  consider  wdiether  the  practice  of  average 
adjusters  in  this  country,  which  is  said  to  have  existed  for  seventy 
or  eighty  years,  if  thus  found  to  be  at  variance  with  legal  principles, 
shall  nevertheless  prevail,  and  must  be  considered  as  having  settled 
the  law.  I  am  not  aware  of  any  principle  on  which  the  affirmative 
of  this  proposition  can  be  maintained,  or  of  any  authority  by  which 
it  can  be  upheld.  It  is  not  a  usage  of  trade  by  which  the  terms  of 
a  contract  may  be  interpreted  or  modified.  It  is  not  a  custom 
which  can  be  presumed  to  have  a  legal  origin.  It  is  not  the  in- 
veterate praxis  of  a  Court  or  Courts  having  judicial  authority,  and 
which  must  therefore  be  taken  to  be  the  law,  though  inconsistent 
with  general  ]iriiiciples.  ^J'he  authority  of  average  adjusters  may 
Iji-  said  to  \»-  of  an  aiuuualous  character.  By  the  consent  of  ship- 
(jwiicrs  and  merchants  they  act  as  a  sort  of  arbitrators  in  the 
settlement  of  matters  (jf  average.  ]5ut  they  are  bound  in  the  ad- 
jii.^tiiifiit  ol^-iirli  claims  to  follow  the  law.  And  in  the  practice 
they  have  atlojiied.  they  have  not  acted  oi'jiilended  t  o  act  on  or  give 
effect  to  any  mercantile  usages,  but  havt'  inteiuled  to  give  effect 
to  what  they  believed  to  be  the  law  ;   but  they  have  mistaken  it.' 


INTERNATIONAL  LAW   OF  GENERAL   AVERAGE.        2C9 

And  after  liavini;  niado  the  following  remark,  '  If  a  custom  pre- 
vailing in  a  Court  wliidi,  though  an  inferior  Court,  is  still  a  Court 
of  law,  if  inconsistent  with  law  cannot  prevail,  surely  the  same 
rule  must  apply  to  a  practice  of  average  adjusters.  When  a 
practice  of  this  kind  is  brought  to  the  test  of  a  legal  decision,  and 
is  found  to  be  erroneous  and  inconsistent  with  law,  it  cannot  be 
permitted  to  override  the  law  and  acquire  the  force  of  law,'  the 
Lord  Chief  Justice  concludes  as  follows  : — 

'  The  case  of  Stewart  v.  ThePacific  Steamship  Company  (Law- 
Reports,  8  Q.  B.  p.  88),  so  far  from  supporting  the  defendants'  case, 
appears  to  me  a  strong  authority  the  other  way.  There,  by  the 
terms  of  the  bill  of  lading,  average  (if  any)  was  to  be  adjusted 
according  to  British  usage.  A  fire  having  broken  out  in  the  ship, 
water  was  poured  in  to  extinguish  it,  and  bark  shipped  on  board 
by  the  plaintiffs  was  seriously  damaged  thereby.  The  plaintiff 
claimed  as  for  General  Average ;  but  it  appeared  that  it  was  the 
practice  of  avei'age  adjusters  in  this  country  to  treat  such  damage 
as  Particular  Average.  The  Court  expressly  declared  the  practice 
to  be  at  variance  with  the  law  applicable  to  such  a  case,  and  would 
assuredly  have  given  judgment  in  favour  of  the  plaintiffs,  had  not 
the  latter,  by  the  terms  of  the  bill  of  lading,  expressly  agreed  to 
make  the  custom  a^  part  of  the  contract.  "  If,"  says  Mr.  Justice 
Quain,  in  delivering  the  judgment  of  the  Court,  "  the  present  case 
depended  wholly  on  the  common  law  applicable  to  General  Average, 
we  think  the  plaintiffs  would  be  entitled  to  recover ;  but  as  the 
parties  have  agreed  to  make  the  custom  a  part  of  their  contract, 
the  case  must  be  decided  according  to  the  custom,  and  the  result 
is  that  our  judgment  must  be  for  the  defendants."  To  which  the 
learned  Judge  added,  "  It  is  to  be  hoped,  however,  that  in  future 
there  will  be  no  difference  between  law  and  custom  on  this  point, 
and  that  average  adjusters  will  act  on  the  law  as  now  declared, 
and  that  bills  of  lading  will  also  be  framed  in  accordance  with  it." 
There  being  no  such  term  in  the  present  contract,  I  see  no  reason 
for  treating  the  practice  with  more  consideration  than  the  practice 
then  before  the  Court  received  at  its  hands  in  that  case. 

Walthew  v.  Mavrojani  (Law  Reports,  5  Ex.  p.  116)  was  al- 
together different  from  the  present;  it  was  a  case  of  stranding,  and 


270  MARITIME   LEGISr.ATIOX. 

the  question  was  whether  expenses  incurred  for  the    purpose    of 
getting  the  ship  off,  after  the  goods  had  been  taken  out  of  her,  and 
removed  to  a  pkce  of  safety,  coukl  be  made  the  subject  of  General 
Average,  and  it  was  held  that  they  could  not.     But  of  the   six 
Judo-es  in  the  Exchequer  Chamber,  Bovill  (Chief  Justice),  Mellor, 
Montague  Smith,  Lush  and  Hannen  (Justices)  base  their  judgment 
on  the  ground  that  while  it  was  essential  to  the  owner  of  the  ship 
to  get  his  ship  off  so  as  to  be  able  to  resume  the  voyage  and  earn 
the  freight,  it  was  indifferent  to  the  goods  owner,  the  goods  being  in 
safety,  whether  they  were  carried  on  in  the  same  ship  or  in  another. 
"  It  is  not  shown,"  says  the  Chief  Justice,  "that  any  advantage 
resulted  to  the  goods  from  their  being  carried  on  in  that  ship  rather 
than  in  any  other."     It  was  indifferent  to  the  owners  of  the  cargo 
Avhether  the  ship  floated  or  not,  and  there  was,  therefore,  no  sacri- 
fice made,  or  extraordinary  expense  incurred  to  save  both  ship  and 
cargo,  or  for  the  common  benefit  of  both.     "  I  draw  the  inference," 
says  ]\Ir.  Justice  Montague  Smith,  "  that  it  was  indifferent  to  the 
owner  whether  the  goods  went  forward  to  England  in  the  '  Southern 
Belle,'  the  ship  in  question,  or  any  other."      Mr.  Justice  Hannen 
says  :  "  It  is  unjust  that  expenses  incurred  by  the  owner  of  the 
shii)  for  the  benefit  of  all  should  be  borne  b}^  him  alone,  but  the 
expenses  in  question  were  not  such,   for  it  is  indifferent  to  the 
owner  of  goods  whether  his  goods  are  taken  on  by  the  same  ship, 
except  where  they  would  not  otherwise  be  carried  on  at  all,  or  onl}^ 
at  a  greater  expense."      Even  Mr.  Justice  Brett,  who  appeared  to 
have  been  disposed  to  lay  down  the  rule   more   generally,  treats 
these  expenses   as   incurred    solely   for  the    benefit  of  the   ship- 
owner. 

'  In  like  manner,  in  the  earlier  case  of  Hallett  v.  Wigram 
(9  Common  Bench,  p.  580),  in  which  a  claim  for  contribution  had 
been  made  where  part  of  the  cargo  had  Ix'cn  sold  to  raise  money 
to  repair  the  ship,  which  had  put  back  by  reason  of  damage  sus- 
tained by  ordinary  perils  of  the  sea,  Wilde  (Cliief  Justice)  in 
giving  judgment,  says:  "It  is  in  respect  only  of  the  incapacity  of 
1hi'  ])art iciilaf  ship  to  carry  the  goods  forwai'd  lo  flicir  destination 
that  the  pleas  show  that  the  cargo  was  in  danger  of  being  wholly 
lost.     It  is  diflieiilt  to  see  how  the  repair  of  the  shi})  could  be  for 


JNTERNATIOTs'AT.   LAW   OF  GENERAL   AVERAGE,        271 

the  benefit  and  advantaf^c  of  tlic  plaintiff.      The  plaintiff's  goods 
were  of  a  description  not  to  be  deteriorated  to  any  great  extent." 

'  These  two  decisions  are,  no  doubt,  sufficient  autliority  for  say- 
ing that,  according  to  English  law,  expenses  incurred  for  the  benefit 
of  the  ship  alone,  without  any  concomitant  benefit  to  the  cargo, 
such  as  the  expense  of  getting  off  a  stranded  vessel  after  the  goods 
have  been  discharged,  or  repairing  a  vessel  in  a  port  of  refuge,  in 
the  absence  of  special  circumstances  such  as  were  referred  to  in 
Walthew  v.  Mavrojani,  will  not  give  a  claim  to  General  Average ; 
but  they  are  inapplicable  to  a  case  like  the  present.  There  is 
nothing  here  to  show  that  the  goods  carried  have  been  sent  on  in 
another  vessel ;  and  what  is  of  more  importance,  the  expenses  were 
all  incurred  in  furtherance  of  the  common  purpose  and  for  the 
benefit  of  the  cargo  as  well  as  the  ship.  Of  the  ship,  as  an  oppor- 
tunity was  thus  afforded  of  repairing  it,  and  enabling  it  to  take  on 
the  carefo :  of  the  cargo,  as  it  was  thus  enabled  to  be  carried  on  to 
its  destination.  I  am  therefore  of  opinion  that  our  judgment  must 
be  for  the  plaintiff,  and  as  my  brother  Mellor  concurs  in  the  view  I 
take,  both  as  regards  the  result  and  as  regards  the  reasons  for  it, 
there  will  be  judgment  for  the  plaintiff.' 

The  defendants  appealed  against  this  judgment,  and  both  parties 
having  fortified  themselves  respectively  with  two  leading  counsel, 
eminent  in  matters  of  commercial  law^,  long  and  learned  arguments 
were  addressed  to  the  Court  of  Appeal,  which  confirmed  the  first 
judgment,  and  pronounced  its  unanimous  reasons  through  the 
mouth  of  Lord  Justice  Thesiger : — 

'  The  question  raised  by  this  appeal  is  whether,  in  the  case  of 
a,  vessel  going  into  port  in  consequence  of  an  injury  which  is  itself 
the  subject  of  General  Average,  the  expenses  of  warehousing  and 
reloading  goods  necessarily  unloaded  for  the  purpose  of  repairing 
the  injuiy,  and  expenses  incurred  for  pilotage  and  other  charges  on 
the  vessel's  leaving  the  port,  are  the  subject  of  General  Average 
also. 

'  The  matter  came  before  the  Court  below  in  the  form  of  a 
special  case,  and  upon  it  the  Court  decided  in  favour  of  the  plain- 
tiffs, who  assert  that  the  expenses  in  question  are  the  subject  of 
General  Average. 


272  MARITIME   LEGISLATION. 

'The  special  case  states  a  long-continued  practice  of  British 
average  adjusters,  in  adjusting  losses  in  cases  where  ships  have  put 
into  port  to  refit,  whether  such  putting  into  port  has  been  occa- 
sioned bv  a  General  Average  sacrifice  or  a  Particular  Average  loss, 
to  treat  the  expense  of  discharging  the  cargo  as  General  Average ; 
the  expense  of  warehousing  it  as  Particular  Average  on  the  cargo, 
and  the  expense  of  the  re-shipment  of  the  cargo,  pilotage,  port 
charges  and  other  expenses  incurred  to  enable  the  ship  to  proceed 
on  her  voyage  as  Particular  Average  upon  the  freight.  It  was  not, 
however,  and  could  not  reasonably  be  contended  for  the  appellant, 
that  the  practice  could  be  put  so  high  as  a  custom  impliedly  incor- 
porated in  the  contract  between  the  parties  ;  and  during  the  course 
of  the  argument  we  intimated  our  opinion,  founded  upon  the  lan- 
guage of  the  special  case  with  regard  to  this  practice,  and  especially 
the  language  of  the  fifth  paragraph,  that  the  question  between  the 
parties  must  be  decided  in  accordance  with  legal  principle  and 
authority,  which  the  practice  of  the  average  adjusters  professes  to 
follow. 

'  The  law  governing  the  case  is  admittedly  English  law,  for  the 
expenses  in  dispute  arose  upon  a  voyage  the  proper  and  actual 
termination  of  which  was  an  English  port. 

'  As  a  matter  of  principle  we  are  clearly  of  opinion  that  the 
judgment  of  the  majority  of  the  Court  below  in  favour  of  the  plain- 
tiffs was  right.  The  principle  which  underlies  the  whole  doctrine 
of  General  Average  contribution,  is  that  the  loss,  immediate  and 
consequential,  caused  by  a  sacrifice  for  the  benefit  of  cargo,  ship, 
and  freight,  should  be  borne  by  all.' 

After  some  further  observations,  the  judgment  thus  proceeds  : — 

'  A  vessel  which  has  put  into  port  to  repair  an  injury  occasioned 
by  a  General  Average  sacrifice,  may  be,  and  generally  is,  when  in 
port,  in  perfect  safety  ;  and  ii"  Ity  the  expression  "  common  danger  " 
be  meant  danger  of  actual  injury  to  vessel  and  cargo,  there  is  no 
more  danger  to  the  goods  when  on  board,  the  vessel  being  in  port, 
than  wlu-n  stowed  in  a  warehouse  on  shore,  and  indeed  in  many 
cases  only  a  portion  of  tlie  goods  is  removed  from  tlie  vessel  in 
order  to  do  tlic  repairs  lo  liei-.  wliilc  llic  rciiiaiiider  of  tlie  goods  is 
left  on  board. 


INTERNATIONAL  LAW   OF  GENERAL   AVERAGE.         273 

'  If,  on  the  other  htiud,  by   "  common  danger ''  bo  meant  the 
danger  of  the  vessel  with  her  cargo  being  prevented  from  prose- 
cuting her  voyag(^,  then  tliere  is  no  more  reason  why  the  expenses 
of  warehousing  and  reloading,  and  the  expenses  incurred  for  pilot- 
age and  other  charges  paid  in  respect  of  the    vessel  leaving  port 
and  proceeding  upon  her  voyage,  should  not  constitute  General 
Average  than  there  is  reason  for  saying  that  unloaded  and  ware- 
housed goods  should  not  contribute,  as  it  is  clear  in   a  case  of 
voluntary  sacrifice  that  they  must,  to  the  expenses  of  the  necessary 
repairs  to  the  vessel.     Both  classes  of  expenses  are  extraordinary 
expenses,  consequent  upon  the  voluntary  sacrifice,  and  necessary 
for  the  due  prosecution  of  the  voyage  by  the  vessel  with  her  cargo. 
Neither  class  can  as  a  general  proposition  be  said  to  be  incuiTed 
exclusively  for  the  benefit  of  either  vessel  or  cargo.     In  some  cases 
it  might  be  for  the  interest  of  a  shipowner  to  terminate  the  voyage 
at  the  port  where  his  vessel  puts  in  to  repair  a  disaster,  while  it 
would  be  all-important  for  the  goods  owner  to  have  his    goods 
carried  on  by  the  same  vessel ;  in  other  cases  the  position  of  the 
parties  in  this  resj^ect  might  be  reversed.     But  however  this  may 
be,  the  going  into  port,  the  unloading,  warehousing,  and  reloading 
of  the  cargo,  and  the  coming  out  of  port,  are  at  all  events  parts  of 
one  act  or  operation  contemplated,  resolved  u2:)on  and  carried  through 
for  the  common  safety  and  benefit,  and  properly  to  be  regarded  as 
continuous.     The   shipowner  is,   at   least,   entitled  to  re-ship  the 
goods    and   prosecute    his    voyage  with  them,   and    the  expenses 
necessary  for  that  purpose,  being  ex  hypothesi  consequent  upon  a 
damage   voluntarily  incurred   for    the  general    advantage,   should 
legitimately  be  the  subject  of  General  Average  contribution ;  or,  to 
use  the  language  of  Lord  Tenterden  in  his  work  on  shipping  :  "  If 
the  damage  to  be  repaired  be  in  itself  an  object  of  contribution,  it 
seems  reasonable  that  all  expenses  necessary,  although  collateral  to 
the  reparation,  should  also  be  objects  of  contribution  :  the  accessory 
should  follow  the  nature  of  its  principal." 

'  But  it  is  said  for  the  appellants  that  if  this  be  so,  and  the 
principle  be  carried  out  to  its  logical  consequences,  expenses  in- 
curred for  wages  of  crew  and  provisions,  should  equally  form  the 
subject  of  General  Average  ;  and  tliat  inasmuch  as  it  is,  as  tliey 


■274  MAPJTIME    LEGISLATION. 

sncrgest,  nneleiiiuble  that  they  do  not,  the  prhiciple  itself  must 
either  be  faulty  or  at  least  not  recognised  in  English  law.  As  a 
matter  of  ftict,  it  is  extremely  doubtful  whether  the  expenses  for 
wao-es  of  crew,  and  provisions  in  a  port  of  refuge,  have  ever  been 
disallowed  by  our  Courts  as  constituting  a  claim  for  General  Average 
in  a  case  where  the  ship  has  put  into  the  port  to  repair  damage  it- 
self belonging  to  General  Average ;  but  even  if  the  assertion  were 
correct,  the  conclusion  drawn  would  by  no  means  follow. 

'  That  the  principle  in  question  is  not  faulty  we  have  endeavoured 
to  show  in  the  observations  already  made,  and  the  view  we  have 
taken  upon  the  point  is  strongly  confirmed  by  the  fact  that  it  is  re- 
cognised and  carried  to  its  so-called  logical  consequences  as  regards 
the  wages  of  crew  and  provisions  in  all  other  countries  than  our  own. 

'That  the  principle  is  not  recognised  in  English  law  is  not 
proved  by  showing  that  expenses  incurred  for  wages  of  crew  and 
provisions  have  been  under  certain  circumstances  disallowed  as  the 
subject  of  General  Average,  unless  it  be  shown,  which  it  has  not 
been  to  us  at  the  same  time,  that  they  have  been  disallowed  upon 
grounds  that  negative  the  principle,  and  is  disproved  if  it  be  found 
that,  notwithstanding  such  disallowances,  the  expenses  in  question 
in  this  case  have  been  allowed.  All  that  in  such  a  case  can  be 
said  is,  that  either  the  Courts  have  made  a  mistake  in  limiting  the 
application  of  the  principle,  or  that  its  limitation  is  due  to  some 
real  or  supposed  rule  of  public  policy.  This  at  least  may  fairly  be 
asked  :  AVhat  is  the  principle  if  this  is  not  ?  If  then  the  question 
before  us  stood  only  upon  principle,  we  should  have  no  hesitation 
in  deciding  it  according  to  the  principle  we  have  stated,  and  it  at 
least  may  fairly  be  asked  :  What  other  principle,  if  it  be  not  coiTect, 
is  to  be  substituted  in  its  place  ?  But  the  authorities  remain  to 
be  considered,  and  it  is  the  more  necessary  that  they  should  be 
examined  with  attention,  seeing  that  the  practice  of  the  average 
adjustci's  professes  to  follow  them.' 

And  aller  a  careful  review  of  the  different  authorities  quoted 
on  both  sides  as  bearing  upon  the  sul)ject  under  consideration,  the 
judgment  continues: — 

*  We  have,  t  lici-cfoiT,  llic  liiw  as  laid  down  by  the  Courts  for  a 
considerable  portion  of  ihc  period  u^•er  which  the  practice  of  aver- 


INTERNATIONAL   LAW  OF   GENERAL   AVERAGE.         275 

age  adjusters,  stated  in  the  spc^cial  case,  extends,  running  counter 
to  that  practice  by  recognising  as  regards  port  of  refuge  expenses 
a  distinction  between  cases  whcrc^  a  ship  puts  into  a  port  of  distress 
for  repair  of  damage  done  by  a  voluntary  sacrifice,  and  cases  where 
it  so  puts  in  for  repair  of  damage  caused  by  perils  of  the  seas,  and 
admitting  in  the  former  cases  as  a  matter  of  principle,  if  not  of 
express  decision,  expenses  such  as  tliose  in  question  in  this  case, 
to  be  the  subject  of  General  Average  contribution. 

'This   distinction    in   principle    is    to    be    found    asserted    by 
Benecke,  who  was  a  member  of  Lloyd's,  in  his  valuable  work  on 
the  principles  of  Indemnity  in  Marine  Insurance,  published   in 
1821'.     At   page  191  he  says:  "If,  setting  aside  all   laws   and 
received   opinions,  the  case  is  examined  merely  accoi'ding  to  the 
fundamental  maxims  which  regulate  General  and  Particular  Aver- 
age, it  will  in  the  first  instance  appear  evident  that  not  only  all 
the  port  charges,  such  as  pilotage,  harbour  dues,  lighterage,  &c., 
but  also  the  charges  of  unloading  and  reloading,  repairs,  and  crews' 
wages,  will  be  General  Average,  if  the  ship  put  into  port  for  the 
mere  purpose  of  repairing  a  damage  voluntarily  incurred  for  the 
general  advantage.     For  all  these  expenses,  being  the  necessary 
consequences  of  a  measure  taken  for  the  general  benefit,  belong  to 
General  Average  ; "  and  then  turning  to  the  case  where  the  port 
is  entered  in  consequence  of  a  particular  damage  sustained,  by 
which  the  vessel  is  rendered  unfit  to  prosecute  her  voyage,  as  when 
masts,  sails,  or  other  requisite  apparel  are  lost  in  a  storm,  or  the 
vessel  has  sprung  a  dangerous  leak,  he  adds :  "  All  the  expenses 
of  entering  the  port  are  a  subject  of  General  Average,  being  the 
consequence  of  a  measure  voluntarily  taken  for  the  preservation  of 
the  whole.     But  as  soon  as  the  object  of  putting  the  vessel  and 
her  cargo  in  safety  is  accomplished,  the  cause  for  general  contri- 
bution ceases  ;  for  whatever  is  subsequently  done  is  not  a  sacrifice 
for  the  benefit  of  the  whole,  or  for  averting  an  imminent  danger, 
but  is  the  mere  necessary  consequence  of  a  casual  misfortune." 
Benecke  then  claims  the  allowance   even  of  wages  of  crew  and 
provisions,  where  the  putting  into  port  is   the  consequence  of  a 
damage  belonging  to  General  Average  ;  on  the   other  hand,  ho 
contends  for  the  disallowance  even  of  the  expenses  of  unloading 

T  2 


276  MARITIME   LFXJISLATIOX. 

cargo,  where  it  is  the  consequence  of  a  damage  belonging  to 
Particular  Average.  In  Stevens  "  On  Average,"  and  Bailey  "  On 
Averao-e,"  the  distinction  referred  to  is  not  adopted  except  as  re- 
gards  the  repairs  of  the  ship  ;  but  both  writers  assert,  as  a  matter 
of  principle,  that,  where  a  ship  necessarily  puts  into  a  port  to 
repair  damage,  whether  the  original  cause  of  damage  be  a  volun- 
tary sacrifice  or  any  ordinary  peril  of  the  sea,  the  expenses  of  ware- 
housing and  reloading,  as  well  as  those  of  unloading  the  cargo,  and 
the  outward  as  well  as  inward  port  charges,  should  be  the  subject 
of  General  Average  contribution.  (See  "  Stevens,"  p.  22,  and 
"Bailey,"  p.  119.)  They  look  not  to  the  more  remote  damage 
which  undoubtedly  was  a  Particular  Average  loss,  but  to  the  proxi- 
mate act  of  putting  into  port  for  the  safety  of  ship  and  cargo, 
which  would  belong  to  General  Average,  and  in  answer  to  the 
argument  that  their  views,  if  logically  carried  out,  would  lead  to 
the  allowance  as  General  Average  of  the  cost  of  repair  of  the  ship, 
Bailey,  at  p.  119,  replies  that  the  damage  which  necessitated 
that  repair,  being  caused  by  a  peril  of  the  sea,  the  repair  should  be 
treated  as  Particular  Average,  but  that  the  ship  does  not  put  into 
the  port  of  refuge  because  she  wants  repairs,  but  because  the  voyage 
cannot  be  continued  until  she  is  repaired,  or  a  total  loss  of  ship  and 
cargo  will  follow  if  she  does  not  go  into  port.  He  adds :  "  The 
immediate  cause  for  putting  into  the  port  of  refuge  is  the  impossi- 
bility of  completing  the  voyage  in  her  then  state,  or  the  expected 
total  loss  of  ship  and  cargo ;  the  damage  which  the  ship  has  sus- 
tained is  the  remote  cause  onl}"",  for  under  other  circumstances  the 
crew  are  not  justified  into  putting  into  port,  although  the  vessel 
may  have  sustained  damage  which  it  will  be  necessary  ultimately 
to  repair." 

'  'J'lie  views  thus  expressed  are  substantially  those  which  are 
recognised  in  American  law  and  practice,  and  they  are  carried  out 
to  the  length  of  including  tlie  expense  of  wages  of  crew  and  pro- 
visions at  the  port  of  refuge  in  the  amount  to  be  contributed  for  in 
(jleneral  Average  in  all  cases  where  a  vessel  puts  into  port  for  the 
common  safety,  whether  owing  to  injury  from  a  peril  of  the  sea  or 
a  voluntary  sacrifice.  (See  J'hillips  "  On  Insurance,"  3rd  edition, 
sections  1 ,322,  1,32G,  and   1,328.)     T*.  r.-turn  to  the  text-writers 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.         277 

of  this  country,  Mr.  ArnoulJ,  in  his  work  upon  "  JMurine  Insurance, 
3rJ  edition,  vol.  ii.  p.  789,  after  discussing  the  principles  relating 
to  General  Average,  says :  "  From  these  principles  it  follows  that 
where  a  ship  has  either  cut  away  her  masts  or  rigging,  or  has  been 
so  damaged  by  a  storm  that  it  is  necessary  for  the  safety  both  of 
ship  and  cargo  to  put  into  a  port  of  distress  for  repairs,  all  the 
expenses  inseparably  connected  with  the  act  of  first  putting  into 
and  afterwards  clearing  out  of  such  a  port  of  distress,  give  the  ship- 
owner a  claim  to  a  General  Average  contribution,  and  this  upon 
the  plain  ground  that  these  expenses  are  a  necessary  consequence 
of  an  extraordinary  measure  taken  for  the  general  preservation." ' 

And  the  judgment  concludes  in  the  following  terms  : — 

'  The  result  of  this  review  of  the  authorities  is  to  confirm  the 
opinion  which,  apart  from  authority,  we  entertain,  and  have  already 
expressed  upon  the  questions  submitted  to  us. 

'  The  practice,  then,  of  the  average  adjusters,  as  stated  in  the 
special  case,  appears  to  us  to  be  neither  founded  upon  true  prin- 
ciples, nor  to  be  in  accordance  with  the  views  of  the  text-writers ; 
and  so  far  as  there  is  case  authority  upon  the  matter,  it  appears  to 
us  to  be  opposed  to  legal  decisions.  It  is  a  practice,  too,  which, 
has  not  been,  as  the  practice  in  Stewart  v.  The  West  India  and 
Pacific  Steam  Ship  Company  (Law  Reports,  8  Q.  B.  p.  88)  was 
made,  part  of  the  contract  between  the  parties,  and  therefore  con- 
stitutes no  impediment  to  our  giving  effect  to  the  objections  to  its 
validity,  and  in  deciding  as  we  do  that  the  judgment  of  the  authority 
of  the  Court  below  was  right  and  should  be  affirmed,  it  is  satisfactory 
to  us  to  know  that  the  law  as  laid  down  in  the  judgment  of  the 
Court  below  and  of  this  Court  is  placed  upon  a  footing  which  more 
nearly  assimilates  it,  in  matters  in  which  assimilation  is  desirable, 
to  the  law  obtaining  in  other  mercantile  and  maritime  communities.' 

I  should  be  only  too  happy  if  I  could  add  that  the  antagonists 
to  the  York  and  Antwerp  Rules,  taking  into  their  consideration 
the  arguments  in  the  above-quoted  judgments,  would  now  cheer- 
fully and  cordially  join  us  in  adopting  tliem  altogether,  for  as  Mr. 
Lowndes  in  his  address  at  the  last  meeting  of  the  Average 
Adjusters'  Association  very  truly  stated  : — 

'It   is  a  somewhat  remarkable  circumstance   that,  of  all  tl'O 


278  MARITIME    LEGISLATION. 

changes  proposed  by  the  York  rules — I  call  them  for  the  moment 
by  their  old  name,  because   I  am   now   referring  to  the  state  of 
things  when  they  were  drawn  up — all  except  two  have  been  since 
adopted  into  the  law  and  practice  of  this  country.     At  the  time 
when  those  rules  were  drawn  up,   it  was  an  innovation  on  our 
practice  to  propose  that  damage  to  cargo  by  opening  the  hatches 
to  make  a  jettison,  or  by  derangement  of  stowage  consequent  on  a 
jettison,  or  by  pouring  down  water  to  extinguish  a  fire,  should  be 
treated  as  General  Average  ;  or  that  damage  either  to  ship  or  cargo 
by  a  voluntary  stranding  should  be  treated  as  General  Average 
under  any  circumstances  ;  or  that  damage  done  to  cargo  by  dis- 
charging at  a  port  of  refuge  should  be  treated  as  General  Average 
under  any  circumstances ;  or   that  the  deductions  from  the  con- 
tributory value    of  freight  should  be  confined   to  those  expenses 
which  were  incurred  subsequently  to  the  General  Average  act.   All 
these  innovations  have  now  been  adopted,  some  under  the  compul- 
sion of  legal  decisions,  others  without  that  compulsion,  into  our 
practice ;  and  in  all  these  respects  our  practice  at  this  day  con- 
forms to  the  very  words  of  the  York-Antwerp  Kules.     So  much  of 
our  labours  at  York  and  at  Antwerp  has  borne  fruit.     This  is  a 
fact   which    every  adjuster  knows  or  ought  to  know.     The  only 
portion  of  our  work  which  at  this  moment  remains  unaccomplished 
is  the  carrying  out  of  Rule  7,  which  is  identical  in  substance  with 
the  resolution  we  are  now  considering,  and  Rule  8,  which  declares 
that  the  wages  and  maintenance  of  the  crew  during  a  vessel's  de- 
tention in  a  port  of  refuge  ought  to  be  replaced  as  General  Average.' 
As  to  the  wages  and  maintenance  of  the  crew  during  a  vessel's 
detention  in  a  port  of  refuge,  1  can  only  repeat  what  I  have  on 
])revious  occasions  given  as  the  result  of  my  practical  experience, 
that  if  such  expenditure  is  not  Imul  fide  allowed,  means  are  found 
to  recover  tlicin   under  the  (K'noniinalion  of  labourage,  and  if  we 
believe  some  of  our  friends  who  have  been  professionally  engaged 
at  the  Cape  of  Good  Hope  and  at  other  ports  frequently  entered  by 
vessels  in  distress,  the  charges  for  labourage  are  often  very  much 
in  excess  of  what  crews'  Wiigcs  and   pi-ovisions  during  such  stay 
CI iiild  jtossildv  iniioiint  In. 

»>(•  far  as    I   lia\ c   been  aljle  lo  ascertain  the  case  stands  thus  : 


INTERNATIONAL    LAW   OF   GENERAL   AVEUAOE.         270 

wlu'R'as  the  Liverpool  imd  (Jkisgow  adjustments  are  generally  drawn 
up  in  conformity  with  the  '  Attwood  v.  Sellar  '  case,  i.e. — carrying 
the  principle  involved  in  that  case  to  its  apparently  legitimate  ex- 
tension in  conformity  with  the  York-Antwerp  Rules — the  London 
adjusters  continue  still  to  adhere  to  the  old  practice  in  all  cases 
except  those  which  are  absolutely  on  all-fours  with  Attwood  and 
Sellar.  'I'liat  such  a  difference  of  practice  cannot  continue  stands  to 
reason,  especially  if  it  is  considered  that  the  York  and  Antwerp 
Rules  are  inserted  in  almost  all  policies  on  ships  and  cargoes,  so  that 
practically  the  work  of  their  general  adoption  is  steadily,  although 
slowly,  going  onwards.  Further  litigation  will  undoubtedly  be  re- 
sorted to,  and  it  is  not  improbable  that  at  our  next  meeting  we 
may  hear  that  our  jurisprudence  has  made  a  fresh  advance  towards 
that  uniformity  which  has  so  long  been  our  goal. 

There  is  only  one  subject — and  our  much  respected  friend,  Mr. 
Lawrence  R.  Baily,  having  mentioned  it  in  his  opening  address  as 
Chairman  to  the  Average  Adjusters'  Association,  my  alluding  to  it 
need  scarcely  require  an  apology — to  which  I  wish  to  call  the  atten- 
tion of  the  conference. 

It  is  well  known,  and  not  only  laid  down  by  the  most  eminent 
Judges  and  text- writers,  but  everywhere  conceded,  that  the  adjust- 
ment of  any  General  Average  occurring  in  the  course  of  a  maritime 
adventure  is  to  be  drawn  up  at  the  port  of  destination,  and  in  con- 
formity with  the  there  prevailing  laws,  customs,  or  practices,  what- 
ever they  are.     On  this  point  Mr.  Baily  stated : — 

'  In  most  cases  this  would  create  no  inconvenience,  but  when 
as  in  ]\Iediterranean  steamers,  which  have  on  board  goods  for  and 
from  different  countries,  say  England,  Greece,  Turkey,  destined  for 
other  countries,  say  Greece,  Turkey,  Spain,  &c.,  the  laws  and 
customs  in  each  of  which  differ  from  those  in  every  other — such 
a  doctrine  would  produce  chaos.  There  is  no  one  port  of  destina- 
tion as  regards  all  the  cargo  in  such  a  case.  Would  it  not  be 
reasonable  and  create  less  confusion  if  the  law  of  the  flag  of  the 
ship  were  adopted  in  such  a  case  ?  General  Average  under  such  a 
system  would  be  intelligible,  and  all  could  protect  themselves  by 
insurance  against  such  a  General  Average.' 

I  think  that  the  suggestion  here  made  is  worthy  of  the  very 


280  MARITIME   J.EGISLATIOX. 

best  consideration  at  the  hands  of  all  who  have  an  interest  in  the 
question ;  but  with  how  much  more  satisfaction  would  the  altera- 
tion be  received  if  the  York  and  Antwerp  Rules  had  in  the  mean- 
time secured  the  adhesion  of  all  the  leading  maritime  nations ! 

I:s"ow  the  Transactions  of  the  Association  for  the  years 
1881  (Cologne),  1882  (Liverpool),  and  1883  (Milan)  contain 
only  one  sentence  on  this  subject,  and  that  is  in  the  re- 
port of  the  council  to  the  Cologne  Conference,  which  reads 

thus : — 

Mention  has  been  made  in  the  last  report  of  the  increasing 
acceptance  of  the  York  and  Antwerp  Rules  to  regulate  General 
Average  contributions,  and  the  council  have  the  satisfaction  to 
announce  that  these  rules  have  become  all  but  universally  adopted. 

This  meant,  of  course,  not  by  legal  enactment  or  by 
decisions  of  courts  of  law,  but  by  agreement  between 
shipowners  and  merchants  and  their  respective  under- 
writers. 

I  come  now  to  the  last  legal  feature  as  far  as  our  English 
jurisprudence  is  concerned  on  this  subject,  which  is  fully 
set  out  in  the  following  report  which  I  read  at  the  Hamburg 
Conference  of  the  Association  in  1885,  and  runs  thus  : — 

At  the  request  of  the  executive  council  of  this  Association,  I 
luive  undertaken  to  inform  this  meeting  of  such  incidents  as  have 
occurred  in  England  with  regard  to  the  international  law  of 
(General  Average — as  embodied  in  the  York  and  Antwerp  Rules — 
since  I  had  the  honour  of  bringing  the  subject  before  the  Berne 
Conference  (1880)  of  this  Association. 

I I  was  then  my  good  fortune  to  report  that,  owing  to  a  decision 
of  the  Judges  of  the  Queen's  Bench  Division,  confirmed  by  the 
unanimous  judgment  of  the  Lords  Justices  of  the  Court  of  Appeal, 
it  was  settled  law  in  England,  that  if  a  vessel  had  to  put  into  a 
])<)]•{  of  disi  rcss  in  cons<'()n(iicc  of  a  (iciicral  Average  act,  all  cx- 
pfuises  therel)y  incurred  i-liould  In'  apportioned  ui)()n  all  the  interests 
of  the  maiifiiMC  adventure. 


INTERiNATIONAL   LAW    OF   GENERAL   AVERAGE.         281 

The  language  used  in  the  judgments  upon  this  occasion  (Att- 
wood  V.  Sellar)  led  some  members  of  the  Average  Adjusters' 
Association  to  consider  themselves  authorised  to  apportion  in  an 
equal  manner  all  port  of  distress  expenses,  even  if  the  putting  in 
had  not  been  caused  by  a  General  Average  act. 

This  gave  rise  to  another  lawsuit  (Svendson  v.  Wallace),  which 
was  taken  to  the  House  of  Lords,  and  has  only  lately  been  de- 
cided there. 

The  circumstances  of  the  case  were  that  the  Norwegian  vessel 
'  Olaf  Trygvason,'  with  a  cargo  of  rice  from  Rangoon  to  Liverpool, 
met  with  heavy  weather  and  sprang  a  serious  leak,  in  consequence 
of  which  the  master  was  compelled,  for  the  preservation  of  ship 
and  cargo,  to  put  into  St.  Louis,  Mauritius,  where  the  vessel  had  to 
be  discharged  and  the  cargo  to  be  stored,  and,  after  the  comjiletion 
of  the  vessel's  repairs,  to  be  re-shipped. 

Now,  according  to  the  average  adjustment,  which  our  friend 
Mr.  Richard  Lowndes  issued  in  conformity  with  his  interpretation 
of  the  principles  recognised  in  Attwood  v.  Sellar,  the  proportion 
due  from  the  owners  of  the  cargo  ex  '  Olaf  Trygvason  '  amounted 
to  7701.  2s.  4c?.;  but,  although  the  owners  of  the  cargo — in  con- 
formity with  an  average  statement  drawn  up  by  the  well-known 
London  adjusters,  Messrs.  Wm.  Richards  &  Sons — admitted  their 
liability  to  repay  the  cargo's  proportion  of  the  expenses  of  putting 
into  port,  as  well^s  the  landing  charges  and  warehouse  rent  of  the 
cargo  at  St.  Louis,  amounting  to  681?.  13s.  It?.,  they  denied  their 
liability  to  contribute  to  the  expenses  of  re-shipping  the  cargo,  and 
ia  the  port  charges,  pilotage,  and  other  expenses  subsequent  to 
its  reloading,  amounting  to  88/.  19s.  10c?. 

Under  these  circumstances  several  witnesses  were  called  at  the 
trial,  whose  evidence  was  to  the  efiFect  that  for  sixty  or  seventy 
years  the  practice  of  average  adjusters  had  been  in  conformity  with 
the  cargo-owners'  contention,  but  the  learned  Judge  held  that  this 
was  not  evidence  of  a  custom  of  trade  which  could  be  left  to  the 
jury,  a  decision  which  was  upheld  by  the  Divisional  Court  in  very 
elaborate  judgments  delivered  by  Mr.  Justice  Grove  and  Mr.  Justice 
Mathew. 

Thereupon  a  special  case  was  agreed  upon  between  the  parties, 


282  MAUI  TIME    LE0I6LAT1UX. 

and  argued  before  Mr.  Justice  Lopes,  who  decided  that  ho  was 
bound  by  the  principles  hiid  down  in  the  case  of  Attwood  v.  Sellar, 
and  concluded  his  judgment  as  follows  : — 

'  It  seems  to  me  that  the  point  relied  on  by  the  defendant,  that 
the  expenses  of  going  out  of  port  are  not  chargeable  to  General 
Average  because  the  cargo  is  in  safety  when  the  port  is  reached,  is 
unsustainable.  The  cargo  is  in  safety  when  the  port  is  reached ; 
still  it  must  be  admitted  that  the  expenses  of  unloading  are  Gene- 
ral Average  expenses.  Such  an  argument  would  be  equally  cogent 
whether  the  cause  of  putting  into  port  was  a  General  or  a  Particular 
Average  damage.  In  Attwood  v.  Sellar,  however,  it  was  held  that 
the  expenses  of  going  out  of  port  were  General  Average  expenses. 
I  am  of  opinion  that  the  plaintiffs  are  entitled  to  judgment  for 
88/.  19s.  lOd.  with  interest  in  the  usual  way  and  costs.  I  have 
not  thought  it  necessary  to  cite  authorities.  So  far  as  the  prin- 
ciple involved  in  Attwood  v.  Sellar  is  concerned,  the  authorities  are 
most  exhaustively  dealt  with  by  Thesiger,  L.J.,  in  his  most  able 
judgment  in  that  case  in  the  Appeal  Court.  With  regard  to  the 
other  question  raised  in  this  case  not  decided  in  Attwood  v.  Sellar, 
there  is  little  authority  to  be  found.' 

The  cargo-owners,  not  content  with  this  decision,  took  the  case 
to  the  Court  of  Appeal,  where  the  Master  of  the  Rolls  and  Lord 
Justice  Bowen  pronounced  judgment  in  their  favour,  Lord  Justice 
13aggallay,  the  other  member  of  the  Court,  being  of  a  contrary 
opinion.  From  a  perusal  of  the  judgment  delivered  by  the  Master 
of  the  Rolls  (Sir  Wm.  Baliol  Brett), ^  it  will  be  seen  that  he  con- 
demns the  principle  upon  which  the  York  and  Antwerp  Rules  were 
based,  and  which  was  approved  of  by  five  of  the  most  learned  of  our 
Judges  in  the  Attwood  v.  Sellar  case — the  principle  that  the  common 
benefit  or  the  completion  of  the  maritime  adventure  should  be  the 
guiding  motive  of  the  General  Average  law.  lie  insists  upon  the 
axiom  that  as  soon  as  the  common  safety  of  the  maritime  adventure 
is  insured  from  danger  of  total  loss,  no  apjiortionment  of  any  further 
expenses  may  take  jilace. 

Tin-  iiK'iiibcr^  of  tin's  Association  will  easily  understand  the  line 

'  Now  Lord  Ebhcr. 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.         283 

of  argument  of  the  Muster  of  the  llolls  from  the  following  passage 
out  of  his  judgment : — 

'  The  governing  principle  or  proposition,  which  has  been  adopted 
in  its  terms  by  a  succession  of  English  Courts  as  the  true  statement 
of  the  governing  principle,  is  that  which  was  stated  by  Mr.  Justice 
Lawrence  in  Birkley  v.  Presgi'ave.  It  has  been  considered  to  be 
one  of  the  many  happy  expositions  of  mercantile  law  made  by  that 
learned  person,  in  terms  so  broad  and  yet  so  accurate  as  show  that 
lie  was  one  of  the  greatest  mercantile  lawyers  W'ho  has  ever  adorned 
our  profession  in  this  country.  His  proposition  is  thus  expi-essed  : 
"  All  loss  which  arises  in  consequence  of  extraordinary  sacrifices 
made  or  expenses  incurred  for  the  preservation  of  the  ship  and 
cargo  come  within  General  Average,  and  must  be  borne  proportion- 
ably  by  all  who  are  interested."  This  proposition,  read  with  regard 
to  expenses,  will  read  thus :  All  loss  which  arises  in  consequence 
of  extraordinary  expenses  incurred  for  the  preservation  of  the  ship 
and  cargo  comes  within  General  Average.  But  the  loss  which 
arises  from  an  expense  is  the  expense  itself.  Therefore,  we  must 
read  thus :  Every  expense  incurred  for  the  preservation  of  the  slii}) 
and  cargo  comes  within  General  Average.  Applying  this  rule  in 
its  ordinary  sense  to  each  item  successively  claimed  as  an  item  of 
expenditure  in  respect  of  which  a  General  Average  contribution  in 
any  given  case  is  due,  the  question  must  be  :  was  the  item  of  ex- 
penditure at  the  moment  it  was  incurred,  incurred  for  the  safety 
of  both  the  ship  and  cargo  ?  The  word  "  benefit  "  is  not  used  by 
Mr.  Justice  Lawrence,  but  it  is  used  by  Lord  Kenyon  in  the  same 
case.  He  says:  "  for  the  benefit  of  the  whole  concern."  But  the 
word  "  benefit,"  thus  used  by  him  with  regard  to  the  same  facts  in 
the  same  case  in  a  judgment  agreeing  with  the  judgment  of  Mr. 
Justice  Lawrence  sitting  by  his  side,  must  have  been  intended  to 
mean  the  same  as  the  word  "  preservation  "  used  by  that  learned 
Judge.     The  words  have  been  usually  used  as  equivalent.' 

Lord  Justice  Bowen  arrived  at  the  same  conclusion  in  a  very 
elaborate  judgment,  in  which  he  criticises  the  arguments  used  by 
the  late  Lord  Chief  Justice  Cockburu  and  the  late  Lord  Justice 
Thesiger  in  the  Attwood  r.  Sellar  case,  and  his  observations  can- 
not but  remind  one  of  the  time  when  in  (Jhisgow,  Loudon,  York, 


284  MARITIME   LEGISLATION. 

aud  Antwerp,  the  same  arguments  were  used  in  behalf  of  what 
was  then  called  Lloyd's  practice. 

The  terms  in  which  Lord  Justice  Baggallay  announced  his 
dissent  from  the  conclusions  to  which  his  two  colleagues  arrived 
were  as  follows  : — 

'  I  feel  bound  to  express  the  opinion  at  which  I  have  arrived, 
aud  to  state  concisely  the  reasons  by  which  I  have  been  influenced 
in  forming  that  opinion.  In  doing  so  I  propose,  in  the  first  place, 
to  compare  the  circumstances  under  which  tlie  decision  in  Attwood 
V.  Sellar  was  arrived  at,  with  those  with  which  we  have  to  deal  on 
the  j)resent  appeal ;  for  conciseness  and  convenience  of  comparison 
I  will  refer  to  the  ships  as  A  and  B,  and  will  deal  with  them  as 
having  encountered  the  same  storm  and  as  having  sought  the  same 
port  of  refuge.  The  circumstances  may  be  then  stated  as  follows : 
two  ships,  A  aud  B,  each  on  a  voyage  from  a  foreign  port  to  Liver- 
pool, and  having  a  valuable  cargo  on  board,  encountered  a  violent 
storm;  the  master  of  A,  to  avoid  a  more  serious  injury,  cut  away 
one  of  his  masts  ;  B  sprang  a  dangerous  leak ;  both,  for  the  safety 
of  ship  and  cargo,  put  into  a  port  of  refuge  to  repair  the  injuries 
they  had  sustained ;  to  effect  such  repairs  and  to  enable  the  ships 
to  prosecute  their  respective  voyages,  it  became  necessary  in  the 
case  of  each  ship  to  discharge  the  whole  or  a  portion  of  her  cargo ; 
in  addition  to  the  port  dues  and  other  expenses  incident  to  her 
entering  the  port,  further  expenses  were  incurred  in  respect  of  each 
ship  in  unloading,  warehousing,  and  reloading  her  cargo  whilst  she 
remained  in  port,  and  for  pilotage  and  other  charges  on  leaving  the 
port  to  prosecute  her  voyage. 

'  The  only  difference  between  the  circumstances  of  A  and  those 
of  B  was  in  the  nature  or  character  of  the  injury,  which  occasioned 
lier  putting  into  port.  The  cutting  away  of  one  of  the  masts  of 
A  was  the  subject  of  General  Average;  in  other  words,  her  putting 
into  the  port  of  refuge  was  occasioned  by  a  General  Average  sacri- 
fice ;  whilst  the  putting  into  port  of  B  was  occasioned  by  her 
springing  a  dangerous  leak,  which  was  a  I'articular  Average  loss. 
But  in  each  case  the  putting  into  port  for  the  safety  of  ship  and 
cargo  was  an  act  of  sacrifice  giving  rise  to  claims  for  General  Average 
contril;ution  ;  in  the  case  of  A  thia  act  of  sacrifice  followed,  or  was 


INTET^NATIONAL  LAW   OF  GENERAL   AVERAGE.         285 

a  continuation  of  the  orif^inal  act  of  .sacrifice,  whilst  in  tho  case  of 
B.  it  was  itself  the  original  act  of  sacrifice ;  in  each  case  the 
proximate  cause  of  the  extraordinary  expenses  incurred  was  tho 
putting  into  tlu^  port  of  refuge. 

'If  it  had  been  left  to  average  adjusters,  previously  to  the  de- 
cision in  Attwood  v.  Sellar,  to  adjust  tho  losses  in  respect  of  tho 
expenses  incurred  by  tho  two  ships,  they  would,  in  accordance 
with  a  practice  of  many  years'  duration,  have  dealt  with  them  as 
follows :  in  respect  of  each  ship  they  would  have  treated  the  ex- 
penses incurred  in  entering  the  port  and  of  discharging  the  cargo 
as  General  Average,  those  incurred  in  warehousing  the  cargo  as 
Particular  Average  on  the  cargo,  and  the  pilotage  and  other 
charges  incidental  to  leaving  the  port  as  Particular  Average  on 
freight ;  the  fact  that  in  the  case  of  A  the  putting  into  port  was 
occasioned  by  a  General  Average  sacrifice,  whilst  in  the  case  of  13 
it  was  occasioned  by  a  Particular  Average  loss,  would  in  no  way 
have  affected  the  adjustment  of  the  losses  incurred  by  reason  of 
the  putting  into  port;  and  properly  so,  if  I  am  correct  in  the 
view  which  I  have  expressed,  that  in  each  case  the  putting  into 
port  was  an  act  of  sacrifice  and  the  foundation  of  a  claim  for 
General  Average  contribution. 

'That  the  practice  of  the  average  adjusters  was  based  upon  the 
principle  that  the  putting  into  port  to  refit  is  in  itself  an  act  of 
sacrifice,  is  evidenced  by  their  treating  the  expenses  incidental  to 
entering  the  port  of  refuge  and  of  discharging  the  cargo  as  the 
subject  of  General  Average  contribution ;  upon  no  other  principle 
could  the  practice  be  supported.  But  the  decision  in  Attwood  v. 
Sellar  established  that,  whilst  the  practice  of  the  average  adjusters 
was  in  accordance  with  legal  principles,  so  far  as  it  treated  the 
expenses  of  entering  the  port  of  refuge  and  of  discharging  the 
cargo  as  the  subject  of  General  Average  contribution,  it  M-as 
erroneous,  in  the  case  of  A,  in  limiting  the  expenses,  which  were 
the  subject  of  General  Average  contribution,  to  those  last  men- 
tioned, and  that  the  expenses  of  warehousing  and  reloading  the 
cargo  and  those  incidental  to  leaving  the  port  were  equally  the 
subject  of  General  Average  contribution.  But  if,  in  the  case  of 
A,  the  expenses  of  warehousing  and  reloading  the  cargo  and  of 


28G  MAIITTIME   LEGISLATION. 

leaving  the  port  were  properly  held  to  be  the  subject  of  General 
Average  contribution,  I  am  unable  to  suggest  any  reason,  satisfac- 
tors'  to  mvself,  why  the  like  principle  should  not  be  applied  in  the 
case  of  B  ;  in  that  case  the  expenses  of  unloading,  warehousing, 
and  reloadino"  of  the  cargo  and  the  coming  out  of  port  were  as 
consequent  upon  the  putting  into  port  as  they  were  in  the  case  of 
A  ;  if  they  ought  not  to  be  treated  as  the  subject  of  General 
Average  contribution  in  the  case  of  B  they  ought  not,  according 
to  the  view  which  I  take  of  the  circumstances  of  the  two  cases,  to 
have  been  so  treated  in  the  case  of  A, 

'  It  has  been  pressed  upon  us  in  argument  that  in  the  judgment 
which  was  delivered  in  Attwood  v.  Sellar  care  was  taken  to  avoid 
intimating  any  opinion  as  to  how  a  case  similar  to  that  now  under 
consideration  should  be  dealt  with,  I  cannot  assent  to  this  view 
of  the  scope  of  the  judgment ;  it  is  doubtless  true  that  it  was  not 
intended  to  express  any  decided  opinion  upon  the  question  referred 
to,  but  attention  is  distinctly  directed  to  the  case  of  a  ship  which 
has  been  damaged  by  perils  of  the  sea,  and  has  subsequently  put 
into  a  port  of  refuge,  and  a  distinction  as  regards  any  claim  to 
General  Average  contribution  is  drawn  between  a  case  in  which 
the  goods  are  unshipped  and  in  safety,  and  the  common  danger 
consequently  at  an  end,  before  the  ship  puts  into  port,  and  one  in 
which  the  goods  are  not  unshipped  until  after  the  ship  has  put 
into  port,  and  in  which  there  is  consequently  a  common  danger  at 
the  time  -when  the  ship  put  into  port.  And  similar  views  are 
indicated  in  the  comments  upon  the  case  of  Job  v.  Langton.  For 
the  reasons  which  I  have  thus  concisely  stated,  I  am  of  opinion 
that  Lopes,  J.,  arrived  at  a  correct  conclusion,  and  that  the  appeal 
should  be  dismissed.' 

Strangely  enough,  the  expectations  which  were  formed,  by  the 
mercantile  community  in  general,  of  the  view  the  learned  members 
of  the  House  of  Lords  would  take  of  the  case  have  not  been  fulfilled. 
After  very  long  arguments,  the  apparently  unanimous  opinion  of 
Lord  Blackburn,  Lord  Watson,  and  Lord  Fit/(Jerald,  before  whom 
the  hearing  took  place,  was  delivered  by  Lord  Blackburn  on 
May  12  last.  The  House  dismissed  the  appeal,  thereby  ratifying 
the  views  of  tlie  Master  of  the  Uolls  and  TiOrd  Justice  Bowen,  and 


INTEIINATIONAL  LAW   OF  GENERAL   AVEEAGE.        287 

clissonting   from    those   of  Mr.  Justice  Lopes   and  Lord  Justice 
Baggallay. 

Lord  Blackburn,  at  the  commencement  of  his  judgment, 
minutely  stated  tlie  course  usually  adopted  in  matters  of  this 
description,  as  far  as  the  settlements  between  the  interests  to  a 
maritime  adventure  were  concerned.  Having  then  given  a  full 
history  of  the  case,  and  explained  what  caused  the  '  01  af  Tryg- 
vason '  to  enter  the  port  of  distress,  what  happened  there  with 
respect  to  her,  and  how  the  different  contentions  ultimately  arose, 
he  proceeded  as  follows  : — 

'In  Simonds  v.  White  (2  Bamewall  &  Cresswell,  111)  Chief 
Justice  Abbott  says  :  "  The  principle  of  General  Average,  namely, 
that  all  whose  property  has  been  saved  by  the  sacrifice  of  the 
property  of  another  shall  contribute  to  make  good  his  loss,  is  of 
very  ancient  date  and  of  universal  reception  among  commercial 
nations.  The  obligation  to  contribute,  therefore,  depends  not  so 
much  upon  the  terms  of  any  particular  instrument,  as  upon  a 
general  rule  of  maritime  law.  The  obligation  may  be  limited, 
qualified,  or  even  excluded,  by  the  special  terms  of  a  contract  as 
between  the  parties  to  the  contract,  but  there  is  nothing  of  that 
kind  in  any  contract  between  the  parties  to  this  cause.  There  are, 
however,  many  variations  in  the  laws  and  usages  of  different  nations 
as  to  the  losses  which  are  considered  to  fall  within  this  principle." ' 

His  lordship  drew  from  this  judgment  the  well-known  and 
generally  adopted  conclusion  that  average  statements  have  to  be 
made  in  conformity  with  the  laws  of  the  port  of  destination.  Ho 
then  approved  of  Mr.  Justice  Manisty's  dictum  in  Attwood  v.  Sellar 
to  the  effect  '  that  general  practice,  long  continued  amongst  English 
adjusters,  affords  strong  ground  for  thinking  that  the  practice  is  one 
which  is  not  in  general  inconvenient,  and  that  it  throws  a  consider- 
able onus  on  those  who  impugn  it  to  show  that  the  particular  cir- 
cumstances are  such  as  to  render  an  adherence  to  the  practice  in 
that  case  against  principle.' 

His  lordship  continued  : — 

'  Before  proceeding  further,  I  think  it  desirable  to  consider  what 
is  the  question  raised  on  the  issue  reserved  for  further  consideration. 
The  plaintiffs  claimed  the  sum  which  ^lessrs.  Lowndes  and  Ryley 


288  M.VRITDIE   LEGISLATION. 

made  payable,  viz.  7701.  The  defendants  had  paid  the  sum  which 
Messrs.  W.  Richards  and  Sons  made  payable  by  them.  The  issue 
was  whether  all  that  was  really  due  had  been  paid.  It  is  to  be  ob- 
served, first,  that  the  points  on  which  Messrs.  W.  Eichards  and 
Sons  differ  from  ]\ressrs.  Lowndes  and  Ryley  are  not  all  in  favour 
of  the  defendants.  If  the  190L,  which  represents  the  warehousing 
rent,  and  fire  insurance,  is  properly  charged  to  cargo,  the  defendants 
have  to  pay  the  whole  of  it.  If  it  is  properly  charged  to  General 
Average,  they  have  only  to  pay  their  proportion  of  it,  or  somewhat 
less  than  one-half  That,  if  it  stood  alone,  would  make  nearly  1001. 
more  payable  by  the  defendants.  But  if  the  450/.,  which  is  the 
cost  of  re-shipping,  is  properly  charged  to  freight,  the  defendants 
are  not  liable  to  pa}^  any  portion  of  it.  If  it  is  properly  charged 
to  General  Average  they  would  have  to  pay  about  half  of  it.  So 
that  that  item  makes  a  difference  of  about  2301.  If,  in  addition, 
the  20/.  for  the  cost  of  going  out  of  port  is  properly  chai'ged  to 
freight,  that  makes  a  further  difference  of  about  10/.  It  is  not, 
therefore,  necessary  to  decide  anything  more  than  whether  these 
two  items  are,  under  the  circumstances  of  the  case,  properly 
chargeable  to  General  Average  or  not.  If  they  are  not  so  charge- 
able, the  order  appealed  against  is  right,  for  the  defendants  have 
paid  enough,  and  more  than  enough,  whether  the  190/.  is  properly 
chargeable  to  cargo  or  not,  and  it  is  unnecessary  to  consider  that 
Cjuestion,  except  in  so  far  as  it  may  throw  light  on  the  principles 
which  are  to  guide  the  decision  of  the  first  and  most  important  one. 
'  I  do  not  think  it  necessary  to  inquire  what  would  be  the  proper 
course,  if  the  seeking  the  port  of  refuge  had  been  solely  for  the 
purpose  of  doing  repairs,  the  cargo  not  being  in  any  danger.  Such 
a  case  may  perhaps  sometimes,  though  rarely,  occur.  Nor  do  I 
think  it  necessary  to  inquire  what  would  be  the  proper  course  if  the 
ship  and  cargo  were  both  safe  in  the  harbour  of  refuge,  and  the  un- 
loading of  the  cargo  was  entirely  for  the  purpose  of  facilitating  the 
r(!pairs.  Such  a  case  seems  more  likely  to  happen  than  that  first 
supposed.  I  think,  on  examining  the  two  adjustments,  and  exer- 
cising the  power  which  1  liave  assumed  to  be  given,  there  can  be 
no  doubt  that  the  cargo  on  board  the  ship,  leaking  to  the  extent 
which  she  did,  was  not  safe  even  in  harbour  until  the  ship  was  so 


INTERNATIONAL   LAW   OF   GENERAL    AVERAGE.         289 

far  lio-htenod  that  she  could  be  taken  into  drv  dock.  Should  the 
expense  of  reloading  her,  after  the  repairs  were  made,  be  charged 
to  freight,  the  goods  having  been  taken  out  under  such  circum- 
stances?    I  think  it  should. 

'  I  am  afraid  I  have  not  understood  the  reasoning  on  which  Chief 
Justice  Cockburn,  in  his  judgment  in  Attwood  v.  Sellar  (Law 
Reports,  1-  Q.  B.  D.  354)  comes  to  a  contrary  conclusion.  If  I 
have,  I  must  express  dissent  from  it. 

'  The  ordinary  contract  between  shipowner  and  merchant  is 
that  the  goods  shall  be  carried  to  their  destination,  and  shall  there 
be  delivered,  unless  prevented  by  the  excepted  perils.  And  this 
generally  should  be  done  in  the  original  ship.  Whenever  the  ship 
is  disabled  it  must,  in  order  literally  to  fulfil  this  contract,  be 
necessary  to  repair  the  ship  so  far  as  to  make  her  fit  to  carry  on 
the  cargo,  and  if  any  part  of  the  cargo  has  been  taken  out,  to 
reship  it.' 

And  in  Rosetta  v.  Gurney  (11  Common  Bench,  188)  the  decision 
of  the  Court  comes  to  this : — 

'  "If  the  voyage  is  completed  in  the  original  ship  it  is  com- 
pleted upon  the  original  contract,  and  no  additional  freight  is 
incurred.  If  the  master  tranships  because  the  original  ship  is 
irreparably  damaged  without  considering  whether  he  is  bound  to 
tranship  or  merely  at  liberty  to  do  so,  it  is  clear  that  he  tranships 
to  earn  his  full  freight,  and  so  the  delivery  takes  place  upon  the 
original  contract."  There  never  was  in  the  present  case  any  ques- 
tion as  to  the  "  Olaf  Trygvason  "  being  irreparably  damaged ;  but  she 
was  so  far  damaged  that  it  was  certain  that  there  would  be  some 
delay  (it  turned  out  to  be  about  six  weeks)  before  the  "  Olaf  Tryg- 
vason "  was  in  a  fit  state  to  carry  the  goods  on  to  Liverpool. 
And  if  there  had  been  a  good  ship  at  St.  Louis  willing  to  carry 
the  goods  to  their  destination  for  less  than  the  agreed  freight  from 
Rangoon,  it  might  have  been  for  the  benefit  of  all  that  the  goods 
should  be  shipped  on  that  vessel  at  once,  carried  on  and  delivered 
to  the  consignee  without  delay.  Such  was  the  course  pursued  in 
Shipton  V.  Thornton  (9  Adolphus  &  Ellis,  314),  where  the  original 
shipment  was  from  Singapore  to  London  in  the  "  James  Scott."' 
She  put  into  Batavia   in   distress,  and  there  the  goods  were  tran- 


290  MARITIME   LEGISLATION. 

shipped  into  tbe  "  Mountaineer  "  and  tbe  "  Sesostris,"  canned  to 
London,  and  there  delivered  to  the  owner  of  the  "  James  8cott,"  at 
a  cost  less  than  the  amount  of  freight  which  he  would  have  earned 
had  the  goods  been  carried  on  in  the  "  James  Scott."  He  delivered 
them  to  the  consignee,  who  produced  the  original  bill  of  lading 
by  the  "  James  Scott."  The  consignee  refused  to  pay  freight  at  the 
rate  in  the  bill  of  lading  of  the  "  James  Scott  "  from  Singapore  to 
London,  though  he  paid  that  from  Batavia  agreed  in  the  bills  of 
ladingr  of  the  "  Mountaineer  "  and  the  "  Sesostris."  The  decision 
was,  that  whether  or  not  the  captain  was  bound  to  tranship  he  was 
at  liberty  to  do  so,  and  having  done  so,  had  earned  his  full  freight. 
The  expense  Avliich  he  had  incurred  to  earn  it  being  certainly  not 
General  Average,  but  I  think  a  Particular  Average,  paid  by  the 
shipowner  to  earn  his  freight.  My  conclusion  is  that  if,  instead 
of  transhipping,  the  captain  waits  till  the  original  ship  is  repaired, 
and  then  re-ships  on  that  original  ship,  the  cost  of  so  doing  should 
not  be  General  Average  but  Particular  Average  to  earn  the  full 
freight.  Chief  Justice  Cockburn  seems  to  think  that  in  all  cases 
where  the  ship  is  disabled,  whether  she  can  be  repaired  or  not,  the 
original  contract  is  dissolved  and  a  new  one  formed  by  law.  This 
seems  to  me  in  direct  conflict  with  the  two  decisions  I  have  just 
cited  ;  and  even  if  it  were  so,  I  think  it  is  somewhat  in  the  nature 
o^  a  j^Gtitio  princijni  to  say  that  one  of  the  terms  of  the  new  con- 
tract should  be  that  the  cost  of  transhipment  or  re-shipment,  as  the 
case  may  be,  should  be  General  Average. 

'  The  judgment,  however,  of  the  Court  of  Appeal,  delivered  by 
Lord  Justice  Thesiger,  does  not  proceed  on  this  ground.  I  have 
some  diflSculty,  after  reading  the  statement  as  to  the  grounds  on 
which  the  Court  of  Appeal  proceeded,  given  by  Lord  Justice  Bag- 
gallay  in  his  judgment  in  the  present  case,  in  saying  on  what 
ground  it  does  proceed. 

'  The  special  case  in  Attwood  v.  Sellar  was  express  that  the  ship 
was  injured  by  a  voluntary  sacrifice,  and  was  theri'by  compelled  to 
put  into  Charleston  to  re])air  the  said  damage.  It  is  not  expressly 
said  either  way  whether  the  carg(j  wns  in  any  danger.  Lord 
Justice  Baggallay,  who  was  a  i)arty  to  lluit  judgment,  says  that  it 
was  (Icridi'd  on  I  lie  groiiiid  tlint   jxilliiia'  iiHo  \]]c  ]>()i-f  of  refuge  was 


INTERNATIONAL  LAW   OF  GENERAL   AVERAGE.        201 

necessary  for  the  safety  of  both  sliip  and  cargo,  and  that  he,  at 
least,  thouglit  that  it  was  immaterial  what  was  the  cause  of  tliat 
necessity.  Yet  I  think  there  is  much  reason  for  doubting  if  Lord 
Justice  Thesiger  quite  agreed  in  this.  He  says :  "  The  principle 
which  underlies  the  whole  law  of  General  Average  contribution  is 
that  the  loss,  immediate  and  consequential,  caused  by  a  sacrifice 
for  the  benefit  of  cargo,  ship,  and  freight,  should  be  borne  by  all. 
This  principle  is  in  the  abstract  conceded  by  counsel  for  the  de- 
fendants, and  its  application  to  the  present  case  is  admitted  to 
the  extent  of  allowing  the  expenses  of  unloading  the  goods,  for  the 
purpose  of  doing  the  necessary  repairs  to  enable  it  to  proceed  on 
the  voyage,  to  be  the  subject  of  General  Average  contribution  ;  but 
they  attempt  to  distinguish  such  expenses  from  those  of  ware- 
housing and  reloading  the  cargo,  and  of  outward  port  and  pilotage 
charges,  by  the  suggestion  that  the  common  danger  to  the  whole 
adventure  is  at  an  end  when  the  goods  are  unloaded,  and  that 
General  Average  ceases  at  the  point  of  time  when  the  common 
danger  ceases."  This  is,  I  think,  a  fair  statement  of  the  argument 
of  the  respondents'  counsel  in  the  present  case.  Afterwards,  he 
says :  "  The  going  into  port,  the  unloading,  warehousing,  and  re- 
loading, are  at  all  events  parts  of  one  act  or  operation  contemplated, 
resolved  upon,  and  carried  through  for  the  common  safety  and 
benefit,  and  properly  to  be  regarded  as  continuous."  This  was 
much  relied  on  by  the  counsel  for  the  respondents.  If  I  thought 
it  was  the  state  of  the  case  before  the  House,  I  should  consider 
whether,  in  such  a  case,  it  might  not  fairly  be  argued  that  the 
whole  of  these  operations  were  to  be  considered  as  parts  of  the  ex- 
pense of  repairing  the  damage,  and  therefore  in  a  case  where  the 
cause  of  the  damage  was  such  that  the  expense  of  repairing  it 
ought  to  be  borne  by  all,  as  was  the  case  in  Attwood  ?\  Sellar,  to 
be  borne  by  all ;  but  that  in  a  case  where  the  cause  of  the  damage 
was  such  that  the  expense  of  repairing  it  ought  to  be  borne  by  the 
ship  only,  which  is  the  present  case,  to  be  borne  by  the  ship  only. 
But  having  come  to  the  conclusion  that  such  is  not  the  state  of 
the  case  before  the  House,  I  do  not  enter  into  this  inquiry. 

*  Having  come  to  the  conclusion  that,  under  the  circumstances 
of  this  case,  the  expenses  of  reloading,  &c.,  should  not    he  ])laced 


292  MArtlTIME    T.EGTSLATION. 

to  General  Average,  and  that  being  enough,  if  your  lordships  agree 
with  me,  to  show  that  the  respondents  have  paid  more  than  enough, 
it  is  not  necessary  to  consider  whether  the  smaller  sum  of  20/. 
ought  also  to  have  been  charged  to  ship  or  freight  and  not  to 
General  Average.  I  agree  with  Lord  Justice  Bowen  in  what  he 
savs  at  p.  90,  that  that  is  a  more  difficult  question  than  the 
other.  And  as  the  amount  is  not  sufficient  to  turn  the  scale,  it  is 
not  necessary  to  decide  it.  I  should  think  it  seldom  involved  any 
sum  so  great  as  to  be  of  practical  importance,  and  I  prefer  leaving 
it  undecided. 

'I  shall  therefore  move  that  the  Order  appealed  against  be 
affirmed,  and  the  appeal  dismissed  ;  the  appellants  to  pay  the 
costs.' 

It  is  sincerely  to  be  regretted  that  this  report  must  end  with 
a  communication  so  unsatisfactory  to  the  members  of  this  Associa- 
tion, who  had  every  reason  to  expect,  from  the  general  applause 
with  which  the  York  and  Antwerp  Rules  were  accepted  by  the 
mercantile  community  in  general,  that  the  judicial  luminaries  of 
this  country  would,  with  an  overwhelming  majority,  sanction  the 
principles  therein  adopted,  and  thereby  proclaim  the  uniformity  of 
the  law  of  General  Average.  Instead  of  this  we  now  have  the 
declaration  of  the  highest  tribunal  of  the  land  that  the  uniformity 
arrived  at  for  more  than  a  quarter  of  a  century  by  the  mercantile 
communities  of  the  principal  nations  of  the  world  cannot  be 
sanctioned.  And  why?  Because  the  view  that  the  interests  to 
a  maritime  adventure  are  bound  together  till  its  termination,  the 
'  common  benefit'  theory  of  all  other  maritime  nations,  has  not  found 
puch  favour  with  some  of  our  English  adjusters  as  to  induce  them 
to  give  up  thi'ir  favourite  '  common  safety'  theory. 

Before  I  conclude,  I  would  state  that  the  Association  of  Average 
Adjusters  in  London,  which  has  been  in  existence  since  1873,  for 
the  purpose  of  securing  the  greatest  possible  uniformity  in  the 
preparatif)n  of  average  statements  entrusted  to  the  adjustment  of 
flicir  iii(li\idiial  members,  have  agreed  ui)on  the  following  rides  of 
])ractice  in  adjusting  claims:-  — 


INTERNATIONAL   LAW   OF   GENERAL   AVERAGE.        i9;3. 

Gontrihatonj  Value  of  Frevjht. 

That  freight  at  the  risk  of  the  shipowner  shall  contribute  to 
(JcntTal  Average  upon  its  gi'oss  amount,  deducting  the  whole  of, 
and  no  more  than,  such  port  charges  as  the  shipowner  shall  incur 
after  the  date  of  the  General  Average  act,  and  sucli  wages  of  the 
crew  as  the  shipowner  shall  become  liable  for  after  that  date. 

Basis  of  Contribution  to  General  A  verage. 

When  property  saved  by  a  General  liverage  act  is  injured  or 
destroyed  by  subsequent  accident,  the  contril)utiiig  value  of  that 
property  to  a  General  Average  which  is  less  than  the  total  con- 
tributing value,  shall,  when  it  does  not  reach  the  port  of  destina- 
tion, be  its  actual  net  proceeds ;  when  it  does  it  shall  be  its  actual 
net  value  at  the  port  of  destination  on  its  delivery  there ;  and  in 
all  cases  any  values  allowed  in  General  Average  shall  be  added  to 
and  form  part  of  the  contributing  value  as  above. 

The  above  rule  shall  not  apply  to  adjustments  made  before  the 
adventure  has  terminated. 

Damage  hij  Water  used  to  Extinguish  Fire. 

That  damage  done  by  water  poured  down  a  ship's  hold  to 
extinguish  a  fire,  be  treated  as  General  Average. 

Damage  caused  hg  Water  thrown  upon  Burning  Goods. 

That  goods  in  a  ship  which  is  on  fire,  or  the  cargo  of  which  is 
on  fire,  affected  by  water  voluntarily  used  to  extinguish  such  fire, 
shall  not  be  the  subject  of  General  Average  if  the  packages  so 
affected  be  themselves  on  fire  at  the  time  the  water  was  thrown 
u])on  them. 

Towage  from  a  Fort  of  Befuge. 

That  if  a  ship  be  in  a  port  of  refuge  at  which  it  is  practicable 
to  repair  her,  and  if,  in  order  to  save  expense,  she  be  towed  thence 
to  some  other  port,  then  the  extra  cost  of  such  towage  shall  be 
divided  in  proportion  to  the  saving  of  expeni^e  thereby  occasioned 
to  the  several  parties  to  the  adventure. 


294  MARIIIME   LEGISLATION. 

Canjo  Funcardcd  frum  a  Port  of  Refwje. 
That  if  a  ship  be  in  a  port  of  refuge  at  which  it  is  practicable 
to  repair  her,  so  as  to  enable  her  to  carry  on  the  whole  cargo,  but, 
in  order  to  save  expense,  the  cargo,  or  a  portion  of  it,  be  tran- 
shipped br  another  vessel,  or  otherwise  forwarded,  then  the  cost  of 
such  transhipment  (up  to  the  amount  of  expense  saved)  shall  be 
divided  in  proportion  to  the  saving  of  expense  thereby  occasioned 
to  the  several  parties  to  the  adventure. 

Agency  Fees  Charijeahle  hij  SJiqioicners. 

That  neither  interest  nor  commission  (excepting  bank  commis- 
sion), nor  any  other  charge  by  way  of  agency  or  remuneration  for 
trouble,  is  allowed  to  the  shipowner  in  General  Average  or  Parti- 
cular Average  on  ship,  or  as  a  special  charge  in  respect  of  pay- 
ments made,  or  services  rendered,  at  the  port  at  which  the  managing 
owner  for  the  time  being  resides,  excepting  that  a  commission  or 
agency  fee  is  allowable  in  respect  of  payments  made,  or  services 
rendered  on  behalf  of  cargo,  when  such  payments  or  services  are 
not  involved  in  the  contract  of  affreightment. 

Damage  caused  to  Cargo  dnring  Forced  DiscJtarge. 

That  whenever  the  cost  of  discharging  cargo  is  General  Average, 
all  loss  or  damage  necessarily  arising  to  cargo  therefrom  shall  be 
allowed  in  General  Average. 

From  the  foregoing  pages,  I  think,  the  readers  of  this 
^•olunle  will  gather,  with  great  satisfaction,  that,  although 
the  intention  to  prepare  a  code  of  General  Average  by 
general  consent  of  those  most  interested  in  the  commerce 
of  tlie  world,  lor  the  purpose  of  submitting  it  to  their 
respective  Governments  to  be  enacted  by  them  as  laws, 
lias  not  been  realised,  the  intricate  and  very  puzzliiig 
su])ject  of  General  Average  has  been  so  thoroughly  thrashed 
out,  that  those  who  are  really  anxious  for  uniformity  will 
not  li;i\('  iiuicli  (lilUciilly  in  ohiaining  it  il"  they  choose  to 
ronlinue  1o  expose  the  lallacN'  ol"  the  '  eomnion  safety' 
theo)\'. 


295 


II. 

THE  INTERNATIONAL  LAW  OF  AFFREIGHT- 
MENT IN  CONNECTION  WITH  THE  AT- 
TEMPTS TO  AGREE  UPON  UNIFORMITY 
IN  THE   WORDING   OF  BILLS  OF  LADLXG. 

The  York  Compress  of  1804  having  resulted  in  an  aji^ree- 
nient  upon  certain  principles  or  rules  of  General  Average, 
the  attempt  naturally  followed  to  come  to  some  similar 
arrangement  upon  the  subject  of  Freight,  as  it  was  evident 
that  a  uniform  system  of  General  Average  could  not  be 
put  into  practice  unless  there  was  an  agreement  as  to  the 
payment  of  freight  where  the  ship  is  condemned  and  the 
cargo  forwarded,  where  the  cargo  is  sold  at  an  inter- 
mediate port,  and  in  other  cases  wliere  the  voyage  is 
interrupted.  With  the  object,  therefore,  of  setting  this 
matter  in  motion,  the  able  delegates  of  the  Belgian  Go- 
vernment to  the  International  General  Averao-e  Cono;resses, 
Messrs.  Theodore  C.  Engels  and  Edouard  van  Peborgh  pre- 
pared the  following  '  projet  de  loi ' : — 

Projet  de  Loi. 

1.  To  establish  as  a  general  rule  that  freight  shall  not  be  due 
until  the  voyage  be  accomplished,  i.e.  until  delivery  of  the  cargo  at 
the  port  of  destination. 

2.  If  in  the  course  of  the  voyage  the  ship,  in  consequence  of 
the  perils  of  the  sea,  and  not  through  any  default  on  the  part  of 
the  captain  or  owner,  has  become  unseaworthy  and  not  in  a  state 
to  accomplish  her  voyage,  the  captain  shall  ho  bound  to  forward 


296  MARITIME   LECilSLATIOX. 

the  cargo  to  its  destination  by  other  vessel  or  vessels,  and  in  this 
case  he  shall,  upon  delivery,  have  a  claim  for  the  whole  of  the  freight 
due  under  the  original  charter-party  (or  bill  of  lading),  although, 
in  consequence  of  the  cargo  having  been  forwarded,  the  goods  have 
been  transported  at  a  lower  freight.  But  the  captain  of  the  original 
vessel  is  liable  for  the  forwarding  freight. 

If,  on  the  contrary,  the  forwarding  freight  is  equal  or  greater 
than  the  original  freight,  the  captain  can  claim  no  freight,  but  the 
owner  of  the  cargo  will  be  liable  for  the  whole  of  the  forwarding 
freight.  If  the  captain  does  not  forward  the  cargo  he  has  not  any 
claim  for  freight. 

The  system  o^ pro  raid  freight  is  entirely  abolished. 

3.  If  the  owner  of  the  cargo,  or  any  part  of  it,  wish  to  with- 
draw it  before  the  termination  of  the  voyage,  in  spite  of  the  offer  of 
the  captain  to  forward  it  to  its  destination,  such  owner,  upon  taking 
deliveiy  at  an  intermediate  port  or  place,  shall  be  liable  for  freight 
for  the  whole  voyage,  and  shall  give  good  and  sufficient  bail  for  any 
General  Average  or  salvage  expenses  which  may  attach  to  the  same. 

4.  The  entire  freight  is  due  upon  goods  jettisoned  or  sacrificed 
for  the  common  benefit,  and  for  those  sold  to  raise  the  necessary 
funds  for  defraj'ing  expenses  incurred  for  the  common  benefit. 

5.  No  freight  is  due  upon  goods  lost  by  perils  of  the  sea,  nor 
for  those  taken  by  public  enemy  or  by  pirates.  Nor  upon  any  goods 
sold  or  destroyed  in  consequence  of  perils  of  the  sea,  in  any  port 
or  place  other  than  the  port  of  destination. 

6.  If  the  ca])tain  savt*  the  goods  from  shipwreck,  or  if  he  re- 
(•■ajtture  them  from  the  enemy  or  from  pirates,  and  if,  being  in  a 
state  to  be  ti-ans]X)rted  to  their  destination,  he  delivers  them,  then 
he  shall  In-  fiifitlcd  to  the  whole  freight;  if  not,  he  shall  be  entitled 
to  none. 

7.  Tlh'  tiit.il  IViiglil  is  diir  U|Hiti  delivery  of  the  cargo  at  the 
port  of  destination,  although  diminished  or  deteriorated  by  perils 
of  tlie  sea,  if  the  consignee  takes  delivery,  and  in  this  case  the 
consignee  is  bound  to  take  delivery  of  all  consigned  to  him  by  the 
'^.'Mne  shipper,  and  iiol   In  elioose  the  Sdund  ;iiid  reject   the  damaged. 

If  the  consignee  will  noi  taki-  dcli\(i-y,  I  lie  ca])tain,  after  due 
autlion'sation.  may  sell  such  goods   to   jiay  his  freight,  ])ut   lor  any 


INTEUNATIONAL   LAW    OF   AFFIIEIGIITMKNT.  297 

deficiency  has  no  resource  against  the  consignee  or  shipper  except 
there  be  an  express  stipulation  to  that  effect. 

8.  The  freight  paid  in  advance  is  always  liable  to  be  refunded 
in  all  cases  involving  non-payment  of  freight,  excejit  wherti  it  is 
stipulated  to  the  contrary. 

9.  The  contribution  of  the  freight  to  General  x\verage  shall  be 
regulated  according  to  the  first  parngraph  of  Article  X.  of  the 
York  rules. 

This  '  projet  de  loi,'  after  Leing  submitted  to  tlie 
Executive  Council  of  the  National  Association  for  the 
Promotion  of  Social  Science,  was  transmitted  to  all  tliose 
Governments,  bodies  of  Underwriters  and  Chambers  of 
Commerce  which  had  appointed  delegates  to  the  three 
previous  congresses  at  Glasgow,  London,  and  York,  the 
followin<Tf  circular  beings  sent  with  it : — 

National  Association  for  the  Promotion  of  Social  Science. 

1  Adam  Street,  Adelphi,  London,  W.C. 
July  1,  1865. 

Sir, — The  success  of  the  congress  for  the  promotion  of  our 
international  law  of  General  Average  has  encouraged  the  hope  that 
similar  advantages  may  flow  from  a  conference  upon  the  still  more 
important  though  less  intricate  question  of  Freight. 

Messrs.  Theodore  C.  Engels  and  Edouard  van  Peborgh,  the 
able  representatives  of  the  Belgian  Government  at  the  York  Con- 
ference, have  drawn  up  a  '  projet  de  loi '  in  nine  clauses,  two  copies 
of  which  are  here  annexed. 

The  Council  will  feel  obliged  if  your  body  will  return  to  them,  at 
your  early  convenience,  one  of  these  copies  and  state  thereon,  first, 
whether  each  clause  agrees  with  the  law  of  your  port ;  if  not,  what 
is  the  law.  Secondly,  whether  you  agree  with  Messrs.  Engels 
and  Peborgh  as  to  their  views  of  what  the  law  ought  to  be,  and  if 
not,  what  you  consider  ought  to  be  the  law. 

The  conference  will  meet  at  Sheffield  during  the  meeting  of 
the  Association  on  October  I.  when  it  is  hoped  your  body  will  be 
represented. 


298  MARITIME    LEGISLATIOX. 

It  will  be  interesting  to  jou  to  learn  that  the  reason  that  a  Bill 

for  General  Average  has  not  yet  been  brought  into  Parliament,  is 

that  Her  Majesty's  Government  are  in  communication  with  the 

French  Government  with  a  view  to  simultaneous  action. — I  am, 

Sir, 

Yours  obediently, 

Geokge  W.  Hastings,  General  Secretanj. 

Altliougli,  fi'om  the  scanty  replies  received  in  answer 
to  this  circular,  it  was  evident  that  such  an  attendance 
as  had  been  present  at  the  congresses  on  International 
General  Average  would  not  be  attracted  by  the  subject 
of  Freight,  the  necessary  arrangements  were  made  for  a 
full  discussion  of  this  important  matter,  and  the  first 
meeting  took  place  at  Sheffield  on  October  5,  18G5,  under 
the  presidency  of  Sir  Eobert  I.  Phillimore,  D.C.L.,  then 
Her  Majesty's  Advocate-General. 

Mr.  rniLip  H.  Rathboxe  (President  of  the  Liverpool  Chamber 
of  Commerce)  undertook  the  duties  of  honorary  secretary,  and 
opened  the  proceedings  with  some  remarks  on  the  importance  of 
the  measure  to  be  discussed  and  the  steps  which  had  been  taken 
for  the  purpose  of  preparing  an  influential  meeting  for  its  consider- 
ation. He  then  reported  communications  from  Lord  Stanley,  M.P., 
]\rr.  Scholefield,  M.P.,  Mr.  A.  de  Courcy,  the  Board  of  Trade,  the 
Cliambers  of  Commerce  at  Antwerp,  Bristol,  Bremen,  Dundee, 
lldiiiburgh,  Glasgow,  Gloucester,  Hull,  Leith,  and  Tynemouth, 
the  Shipowners'  Associations  of  Glasgow,  Greenock,  and  Sunder- 
land, the  General  Shipowners'  Association  of  London,  the  Liver- 
})Ool  Law  Society,  the  Liverpool  Steamship-owners'  Association, 
the  Committee  of  Lloyd's,  and  the  Association  for  the  Protection  of 
(.'ommercial  Interests  as  respects  Wrecked  and  Damaged  Property 
in  London.  The  discussions  were  commenced  by  Mr.  Engels 
moving,  and  Mr.  Van  Peborgh  seconding,  the  adoption  of 

Clause  I. — '  As  a  general  rule  the  freight  is  not  due  until  the 
voyage  be  accomplished,  i.e.  until  delivery  of  the  cargo  at  the  port 
(•'f  dcf-tination.' 


I 


INTERNATIONAL    LAW   OF    AFFULIGIIT.MKNT.  2'J9 

After  ca  few  comments,  the  clause  was  agreed  to  with  the  follow- 
ing addition :  '  unless  where  a  special  agreement  is  made  to  the 
contrary.' 

It  may  be  here  remarked  that  all  the  clauses  were  moved  and 
seconded  by  the  above-named  Belgian  delegates. 

Clause  II. — '  If  in  the  course  of  the  voyage  the  ship,  in  con- 
sequence of  the  perils  of  the  sea,  and  not  through  any  default  on 
the  part  of  the  captain  or  owner,  has  become  unseaworthy  and  not 
in  a  state  to  accomplish  her  voyage,  the  captain  shall  forward  the 
cargo  to  its  destination  by  other  vessel  or  vessels,  and  in  this  case 
he  shall,  upon  delivery,  have  a  claim  for  the  whole  of  the  freight 
due  under  the  original  charter-party  (or  bill  of  lading),  although, 
in  consequence  of  the  cargo  having  been  forwarded,  the  goods  have 
been  transported  at  a  lower  freight.  But  the  captain  of  the  original 
vessel  is  liable  for  the  forwarding  freight. 

'  If,  on  the  contrary,  the  forwarding  freight  is  equal  to  or 
greater  than  the  original  freight,  the  captain  can  claim  no  freight, 
but  the  owner  of  the  cargo  will  be  liable  for  the  whole  of  the  for- 
warding freight. 

'  If  the  captain  does  not  forward  the  cargo,  he  has  not  any  claim 
for  freight. 

'  The  system  of  j^ro  rata  freight  is  entirely  abolished.' 

I  suggested  the  omission  of  the  words  from  '  in  consequence ' 
to  the  words  '  or  owner '  inclusive,  remarking  that  if  the  ship 
became  unseaworthy,  from  whatever  cause,  the  master  should  be 
bound  to  forward  the  cargo.  Having  done  so,  he  would  have  done 
his  duty  to  the  owners  of  such  cargo,  and  had  therefore  a  claim  to 
the  full  freight  originally  agreed  upon.  In  the  clause  should  be 
inserted  words  to  show  that  the  master  was  bound  to  forward,  but 
only  if  vessels  were  obtainable  within  a  reasonable  distance  or  at 
reasonable  terms.  The  words  as  they  stood  looked  as  if  the  master 
might  be  forced  to  build  a  vessel  on  purpose,  and  it  would  surely 
not  be  right  for  him  to  forward  if  he  was  convinced  that  the  freight 
demanded  by  the  only  vessels  procurable  would  exceed  the  value  of 
the  goods  at  the  port  of  destination,  and  he  could  not  be  bound  to 
forward  goods  unless  in  a  lit  state  to  be  forwarded.  In  the  second 
part  of  the  clause  the  words  relating  to  the  clause  oi'  unseaworthiness 


300  MAEITIME   LEGISLATION. 

might  with  propriety  be  inserted,  because,  if  the  ship  had  become 
imseaworthy  from  the  causes  other  than  the  perils  of  the  sea,  the 
owner  of  the  ship  should  be  liable  to  make  good  any  excess  of 
freio-ht.  The  master's  claim  for  freight  should  only  be  when  the 
freight  of  the  substituted  vessel  w^as  larger  than  the  original  freight. 
The  clause  would  be  better  to  stand  thus  : — 

'  If  in  the  course  of  the  voyage  the  ship  has  become  unsea worthy, 
and  not  in  a  state  to  accomplish  the  voyage,  the  master  shall  be 
bound  to  forward  the  cargo  to  its  destination  by  other  vessel  or 
vessels,  should  such  be  obtainable  on  reasonable  terms  and  the 
cargo  be  in  a  condition  proper  to  be  forwarded,  and  he  shall,  vipon 
delivery,  have  a  claim  upon  the  whole  of  the  freight  due  under  the 
original  charter-party  (or  bill  of  lading),  when  the  goods  have 
been  transported  at  a  lower  or  equal  freight.  But  in  this  case  the 
master  of  the  original  vessel  is  liable  for  the  forwarding  freight.' 

I  then  moved  this  as  an  amendment,  and  it  was  seconded  by 
Mr.  Whit  will  (Bristol). 

Mr.  R.  M.  Hudson  (Sunderland)  thought,  if  the  ship  w\as  not 
seaworthy  on  commencing  her  voyage,  the  shipowner  was  clearly 
liable  to  all  the  consequences  of  her  voyage  being  terminated  before 
the  cargo  was  brought  to  its  destination. 

Mr.  Rathbone  moved  the  erasure  of  the  words  '  shall  be  bound 
to  forward '  and  the  substitution  of  the  following  :  '  act  as  agent 
for  the  owner  of  the  cargo,  and,  if  prudent  and  practicable,  to  be 
forwarded.' 

Mr.  Whjtwill  seconded  this  proposal. 

Mr.  Robertson  proposed  to  add  after  the  words  '  shall  be 
bound  '  these  :  '  under  the  forfeiture  or  penalty  of  50  per  cent,  of  the 
freight.' 

Dr.  Waddilove  seconded  this  amendment. 

Mr.  Robertson  thought  the  principle  involved  was,  that  the 
shipmaster  should  be  bound  iu  all  cases  to  use  every  expedient  for 
ffjrwarding  his  cargo,  because,  if  he  did  not  do  so,  great  occasion 
for  dispute  might  arise.  The  risk  sliould  Ijc  on  the  captain  if  he 
neglected  this  duty. 

-Mr.  Cam>I-I>II  thontiht  thr  ];i^l  jji-oposit  inn  iiiih'iiabl(>.  The 
master  would  be  bound  to  give  any  ;iiniMin(  ol'  trrighf.  h()we\'t'r  ex- 


INTERNATIONAL    LAW   OF   AFFREIGnT.MENT  001 

P 

orbitant — perhaps  more  than  the  cargo  itself.  The  cargo  iniglit  Ijb 
damaged,  yet,  iiotwitlustanding  its  damaged  condition,  he  would  be 
bound,  irrespective  of  all  consideration,  to  forward  it. 

IVfr.  Robertson's  amendment  was  put  and  lost,  that  of  ^fr. 
Rathbone  being  carried,  and  this  disposed  of  Mr.  Hudson's. 

The  Chairman  then  read  the  second  paragraph :  '  If,  on  the 
contrary,'  when,  in  lieu  thereof,  I  proposed :  '  If,  on  the  contrary, 
the  forwarding  freight  is  gi'eater  than  the  original  freight,  and  if 
the  unseaworthiness  of  the  original  vessel  has  been  occasioned  by 
perils  of  the  sea,  and  not  by  any  default  on  the  part  of  the  master 
or  owner,  then  the  owner  of  the  cargo  shall  be  liable  for  the  whole 
of  the  forwarding  freight,  but  the  master  of  the  original  vessel 
shall  have  no  claim  for  freight.' 

Mr.  Hudson  seconded  this  amendment. 

Mr.  Rathbone  thought  that,  as  the  principle  was  involved  in 
the  laws  of  all  countries,  if  the  captain  was  negligent,  and  it  could 
be  proved  he  was  responsible,  the  present  law  would  be  weakened 
by  inserting  these  words. 

I  intimated  that  they  were  considering  the  views  of  all  coun- 
tries. In  some  the  law  was  the  very  reverse  of  what  it  was  in 
England.  For  that  reason  I  thought  they  ought  to  accept  my 
amendment,  but  it  was  declared  lost. 

Paragraphs  3  and  4  were  agreed  to. 

Clause  III.^ — '  If  the  owner  of  the  cargo,  or  any  part  of  it, 
wish  to  withdraw  it  before  the  termination  of  the  voyage,  in  spite 
of  the  offer  of  the  captain  to  forward  it  to  its  destination,  such 
owner,  upon  taking  delivery  at  an  intermediate  port  or  place,  shall 
be  liable  for  freight  for  the  whole  voyage,  and  shall  give  good  and 
sufficient  bail  for  any  General  Average  or  salvage  expenses  which 
may  attach  to  the  same.' 

On  the  third  clause  being  read,  I  said  I  thought  that,  under 
its  provisions,  the  master  would  be  subject  to  great  hardship. 
Supposing  a  ship  had  200  tons  of  coal  and  fifty  tons  of  iron,  say, 
from  Newcastle  to  New  York,  and  in  the  course  of  the  voyage  was 
driven  into  Madeira,  the  owner  of  the  coals  might  find  there  a 
market  for  them,  whilst  the  iron  was  unsaleable.  Suppose  this  to 
be  the  case,  if  the  owner  of  the  coals  were  allowed  to  withdraw,  the 


302  MARITIME    LEGISLATION.    ^ 

iron  would  be  sacrificed,  as  it  would  be  impossible  to  find  any  con- 
veyance for  such  a  small  quantity.  I  would  propose  the  following  : 
'  If  the  owner  of  the  cargo,  or  any  part  of  it,  wish  to  withdraw  it, 
or  such  part  of  it,  at  an  intermediate  port  or  place  before  the 
termination  of  the  voyage,  although  the  master  may  be  willing  to 
forward  it  to  its  destination,  such  owners  shall  nevertheless  be 
entitled  to  take  it  at  such  intermediate  place  or  port,  but  shall  be 
liable  for  freight  for  the  whole  voyage,  and  shall  give  good  and 
sufficient  bail  for  any  General  Average  or  salvage,  or  other  ex- 
penses which  may  attach  to  the  goods  so  withdrawn,  providing 
always  that  no  owner  of  a  portion  of  a  cargo  shall  be  entitled  to 
withdraw  his  goods  at  an  intermediate  port  or  place,  when  such 
withdrawal  would  cause  any  delay  or  inconvenience  in  the  forward- 
ing of  the  remainder  of  the  cargo  to  the  safety  of  the  ship.' 

Mr.  Rathbone  approved  of  my  amendment,  and  seconded  it. 

Mr.  Engels  objected  to  the  amendment. 

Mr.  Rathbone  believed  that,  according  to  the  English  law  at 
present,  the  captain  had  full  control  of  the  cargo  until  the  port  of 
destination  was  reached,  and  that  no  owner  could  withdraw  at  an 
intermediate  port,  except  under  special  circumstances. 

Mr.  Robertson  said  that,  if  the  captain  allowed  one  portion  of 
the  goods  to  be  removed,  it  would  entail  delay  on  other  parties 
having  goods  in  the  vessel.  He  thought  the  rights  of  those  other 
owners  should  be  protected. 

Mr.  Whitwill  moved  the  insertion  of  the  words  '  or  other ' 
after  the  word  '  salvage,'  which  the  Chairman  said  was  agreed  to. 

After  I  had  replied,  my  amendment  was  put  and  lost. 

Clause  III.  was  then  agreed  to. 

Clause  I\'. — '  The  entire  freight  is  due  upon  goods  jettisoned 
or  sacrificed  fijr  the  common  benefit,  and  for  those  sold  to  raise  the 
necessary  fund  for  defraying  expenses  incurred  for  the  common 
benefit.' 

Mr.  R.\riii!oM;  moved  an  amendment  wliicli  he  thought  Mr. 
Engels  would  acccjjt.  His  view  was,  that  the  frt'ight  was  not  due 
on  goods  jettisoned  or  sacrificed  for  common  benefit,  but  that 
tlic  owner  had  a  claim  in  General  Average  for  all  loss  of  freight 
faus<'il  by  such  sacrifice.      If  the  Ncsst-l  \v;is  sul)S('(jU(Milly  lost,  there 


JNTEUN.VTIONAL   LAW   OF   AFFIU-ZIOIITMENT.  £03 

was  no  General  Average  on  these  goods,  nor  ouglit  there  to  be  on 
tlie  freight,  l)ecanse  the  freight  had  been  lost.  There  were  other 
cases  in  which  the  owner  ought  not  to  receive  the  full  freig-bt 
because  there  was  a  second  General  Average,  and  in  that  second 
General  Average  there  were  expenses  which  were  thrown  on  freight 
which  would  not  be  thrown  on  the  freight  on  goods  jettisoned. 

Mk.  ExtiKLS  objected  that  the  value  of  the  goods  jettisoned  was 
brought  into  the  General  Average  with  the  freight  on  tbeni.  The 
value  of  the  goods  was  calculated  with  the  freight  on  contribution 
in  General  Average,  consequently  he  thought  they  should  pay  the 
freight  if  goods  were  jettisoned. 

Mr.  Wiht\\ill  said  Mr.  Engels  was  in  error. 

Mr.  Rathhone  said  in  English  law  the  freight  was  deducted 
from  the  value  of  the  goods.  He  thought  it  would  be  a  pity  to 
alter  the  law. 

Mr.  Hudson  seconded  the  amendment,  which  was  the  substitu- 
tion of  the  words  '  no  freight '  for  '  the  entire  freight,'  and  the 
addition,  after  '  common  benefit,'  of  '  but  the  owner  has  a  claim  in 
General  Average  for  all  loss  of  freight  caused  by  such  sacrifice.' 

The  amendment  was  carried. 

Clause  V. — '  No  freight  is  due  upon  goods  lost  by  peril  of  the 
sea,  nor  for  those  taken  by  public  enemy  or  by  pirates. 

'  Nor  upon  any  goods  sold  or  destroyed  in  consequence  of  perils 
of  the  sea,  in  any  port  or  place  other  than  the  port  of  destination.' 

I  then  remarked  that  it  seemed  very  questionable  whether  the 
master  should  be  deprived  of  all  freight  upon  goods  sold  at  an 
intermediate  port  in  consequence  of  the  perils  of  the  sea.  In  the 
first  place,  the  damage  at  the  time  of  such  sale  might  be  slight, 
although  with  a  certainty  of  rapid  deterioration  if  the  goods  were 
re-shipped ;  and  secondly,  masters  of  ships  would  have  a  positiv^e  in- 
centive to  re-ship  damaged  goods,  even  at  risk  of  damage  to  goods 
at  the  time  sound,  because  by  so  doing  they  would  secure  their 
freight,  which  by  Art.  VII.  was  due  in  full  on  all  goods  delivered, 
whether  sound  or  not.  On  the  other  hand,  that  was  not  a  case 
where  any  deficiency  in  freight,  as  shown  by  a  sale,  should  be 
made  up  by  a  general  contribution. 

Mr.  Ratiiijonk  thought  there  was  great  justice  in  what  I  had 


304  :\JAiaTIME    LEGISLATIOX. 

said,  but  there  was  great  danger.  They  must  recollect  who 
captains  were.  Were  they  going  to  give  the  captain  power 
to  use  his  own  discretion  as  to  whether  he  was  to  carry  on 
the  goods  or  not?  He  thought,  if  they  gave  him  that  power,  on 
manv  occasions  that  discretion  would  be  abused,  especially  in  the 
smaller  class — such  as  fish  and  fruit  vessels.  The  captain  might 
find  it  convenient  if  he  could  sell  the  goods  and  break  up  the 
voyage  and  get  the  distance  freight.  It  would  be  almost  impos- 
sible for  anyone  to  show  that  he  was  not  justified  in  what  he  did. 
He  thought  more  power  would  be  put  into  the  hands  of  captains 
than  their  education  and  position  would  render  safe. 

Mr.  Hudson  concurred  with  Mr.  Rathbone.  When  the  owner 
entered  into  a  contract  and  took  the  goods  on  board,  he  was 
bound  to  see  they  were  in  a  good  condition  for  carriage.  If  he 
carried  goods  liable  to  defect,  he  took  extra  freight  for  so  doing. 

Mr.  Rathbone  said  they  had  decided  that  the  freight  should  be 
at  the  risk  of  the  shipowner  and  not  of  the  cargo-owner.  The  loss 
of  the  ship  was  sufiiciently  great. 

Mr.  Engels  asked  why,  if  one  possessed  a  cargo,  and  it  hap- 
pened to  be  so  damaged  that  they  lost  it,  why  should  they  aggravate 
that  loss  by  paying  the  freight  on  the  goods  which  they  lost  ? 

Dr.  Waddilove  could  not  but  think  there  was  some  injustice 
in  the  rule  as  it  stood.  It  made  the  owner  responsible  for  the  loss 
caused  by  causes  beyond  his  control.  He  thought  the  clause  ought 
to  be  modified  so  that  the  whole  loss  might  not  fall  upon  those  who 
could  not  prevent  it. 

Mr.  Rathbone  said  that,  though  the  damage  was  beyond  the 
power  of  anybody,  the  loss  must  fall  on  somebody.  He  considered 
the  loss  would  be  much  harder  if  the  cargo-owner  should  pay  freight 
on  an  utterly  useless  thing. 

Mj{.  Engels  believed  that,  if  a  captain  received  perishable  goods, 
he  should,  if  a  loss  arose,  forfeit  his  freight.  The  owner  of  the  goods 
lost  all  his  property,  and  it  could  not  be  fair  to  make  him  pay. 

Clause  V.  was  then  agreed  to. 

Clause  VI. — '  If  the  captain  save  the  goods  from  shipwreck, 
or  if  he  recaptiiri's  them  from  the  enemy,  or  from  pirates,  and  if, 
being  ill  ri  slate  to  be  I  i';iiisj»iirlc(l    tollicir  (lest  iii;it  ioii.  lie  delivers 


INTERNATIONAL  LAW  OF   AFFREIGHTMENT.  305 

them,  then  he  shall  be  entitled  to  the  whole  freight ;  if  not,  he  shall 
be  entitled  to  none.'  An  additional  proviso  was  added  to  this  on 
the  proposal  of  Mr.  Rathbone,  at  the  instigation  of  the  Leith 
Chamber  of  Commerce:  '  but  without  prejudice  to  his  claim  for 
wages  and  expenses  while  engaged  in  recovering  the  goods.' 

Clause  VII. — '  The  total  freight  is  due  upon  delivery  of  the 
cargo  at  the  port  of  destination,  although  diminished  or  deteriorated 
by  perils  of  the  sea,  if  the  consignee  takes  delivery  ;  and  in  this 
case  the  consignee  is  bound  to  take  delivery  of  all  consigned  to  him 
by  the  same  shipper,  and  not  to  choose  the  sound  and  reject  the 
damaged.  If  the  consignee  will  not  take  delivery  the  captain,  after 
due  authorisation,  may  sell  such  goods  to  pay  his  freight,  and  for 
any  deficiency  has  no  recourse  against  the  consignee  or  shipper 
except  there  be  an  express  stipulation  to  the  contrary.' 

I  proposed  the  clause  in  a  different  form :  '  The  total  freight  is 
due  upon  delivery  of  the  cargo  at  the  port  of  destination,  although 
diminished  or  deteriorated  by  perils  of  the  sea,  if  the  consignee  take 
delivery  of  all  consigned  to  him  by  the  same  bill  of  lading  or  (when 
the  goods  are  in  bulk)  by  the  same  shipper.  If  the  consignee  will 
not  take  delivery,  the  master  may,  subject  to  the  laws  in  force  at 
the  port  of  destination,  sell  such  goods  to  pay  his  freight,  but  for 
any  deficiency  has  no  recourse  against  the  consignee  or  shipper  as 
such,  retaining  only  such  claim  as  he  may  have  upon  the  charterer 
under  the  terms  of  the  charter-party.' 

This  amendment  was  not  seconded. 

Mr.  Rathbone  proposed  another  amendment.  He  supposed 
the  case  of  a  man  sending  out  to  Patagonia,  Valparaiso,  or  else- 
where, a  cargo  of  coals.  On  that  cargo  the  freight  was  very  often 
by  far  the  larger  proportion  of  the  value.  It  might  so  happen 
that  the  value  of  the  coals  in  Valparaiso  fell  below  the  value  of  the 
freight,  and,  therefore,  they  make  the  shipowner  a  speculator  with 
the  cargo-owner.  He  did  not  think  it  a  safe  principle  to  go  upon. 
Were  this  the  law,  he  should,  were  he  a  shipowner,  make  an  ex- 
press stipulation  in  each  case.  He  proposed  to  add  to  the  clause: 
'  But  in  no  case  shall  the  captain  be  entitled  to  receive  on  a  cargo 
deteriorated  during  the  voyage  a  larger  amount  for  freight  than 

X 


306  MARITIME    LEGISLATION. 

he  could  have  received  if  the  whole  cargo  had  been  delivered  in  the 
same  state  in  which  it  was  shipped.' 

Mr.  Whitwill  seconded  this  amendment. 

Mr.  Exgels  thought  the  captain  should  take  his  pi-ecaution 
beforehand.     He  was  responsible  for  what  took  place. 

Mr.  Powell  supposed  an  accident  taking  place,  and  part  of 
the  caro-o,  say  grain,  becoming  damaged,  and  another  part  heated, 
and  also  damaged  by  sea-water.  When  that  was  delivered,  freight 
was  paid  on  the  quantity  discharged,  and  was,  consequently,  from 
increased  bulk,  heavier  than  if  the  grain  had  been  delivered  sound. 
He  thought  it  should  be  enacted  that  no  captain  should  be  entitled 
to  receive  more  freight  on  a  damaged  cargo  than  the  amount  would 
be  if  delivered  in  a  sound  condition.  The  case  often  happened, 
and  was  one  of  great  practical  hardship. 

Mr.  IIathbone  admitted  that  the  hardship  was  great,  but 
thought  it  rather  one  of  circumstances  than  law.  It  was  difficult 
to  find  out  what  the  freight  was.  He  presumed  the  captain  had 
no  claim  whatever  for  the  increase  of  weight  in  the  grain,  and  the 
onlv  case  in  which  he  would  get  such  increase  would  be  where  it 
could  not  be  shown  how  much  the  grain  had  increased. 

The  amendment  was  carried,  and  the  following  alteration  also 
made  :  the  omission  of  the  words  '  shipper  and  not '  to  '  damaged  ' 
inclusive  ;  and  the  substitution  of  '  bill  of  lading,  or  Avhen  the 
goods  are  in  bulk,  by  the  same  ship.' 

Clause  VIII. — '  The  freight  jjaid  in  advance  is  always  liable 
to  be  refunded  in  all  cases  involving  non-payment  of  freight, 
except  where  it  is  stipulated  to  the  contrary.'  In  place  of  the 
first  four  words,  the  following,  '  advance  on  account  of  freight,' 
was  adopted. 

An  additional  Clause  IX.  was  inserted,  viz.  :  'The  owner  of  the 
shi|i  sli.'iU  liave  the  absolute  lii'u  on  the  cargo  for  tlie  freight  and 
(lead  fn-ight.' 

Tlai'sk  IX.  of  the  '  ])i'ojet  de  loi,"  but  now  Clause  X.,  'Tliecon- 
Iril.ntioii  of  llic  frriglit  to  General  Average  shall  be  regulated 
accoiding  to  th<'  first  ])iii-iigra|)h  of  Art.  X.  of  the  ^'ork  rules,'  was 
ailoptfd. 

'I''if  rollowiiiL""  auicndrd  diiil't  \\;is  thiMi  rcatl  :    - 


INTERNATIONAL   LAW   OF   AFFREIGIITMEXT.  307 

I.  To  establish,  as  a  general  rule,  that  freight  should  not  be 
due  until  the  voyage  bo  accomplished,  i.e.  until  delivery  of  the 
cargo  at  the  port  of  destination,  unless  where  a  special  agreement 
is  made  to  the  contrary. 

II.  If  in  the  course  of  the  voyage  the  ship,  in  consequence  of 
the  perils  of  the  sea,  and  not  through  any  default  on  the  part  of 
the  captain  or  owner,  has  become  unseaworthy,  and  not  in  a  state 
to  accomplish  lier  voyage,  the  captain  shall  act  as  the  agent  for  all 
concerned,  and,  if  prudent  and  practicable,  shall  forward  the  cargo 
to  its  destination  by  other  vessel  or  vessels  ;  and  in  this  case  he 
shall,  upon  delivery,  have  a  claim  for  the  whole  of  the  freight  due 
under  the  original  charter-party  (or  bill  of  lading),  although,  in 
consequence  of  the  cargo  having  been  forwarded,  the  goods  have 
been  transported  at  a  lower  freight.  But  the  captain  of  the  original 
vessel  is  liable  for  the  forwarding  freight. 

If,  on  the  contrary,  tlie  forwarding  freight  is  equal  to  or  greater 
than  the  original  freight,  the  captain  can  claim  no  freight,  but  the 
owner  of  tlie  cargo  will  be  liable  for  the  whole  of  the  forwarding 
freight. 

If  the  captain  does  not  forward  the  cargo,  he  has  not  any  claim 
for  freight. 

The  system  of  irro  rata  freight  is  entirely  abolished. 

III.  If  the  owner  of  the  cargo,  or  any  part  of  it,  wish  to  with- 
draw it  before  the  termination  of  the  voyage,  in  spite  of  the  offer 
of  the  captain  to  forward  it  to  its  destination,  such  owner,  upon 
taking  delivery  at  an  intermediate  port  or  place,  shall  be  liable  for 
freight  for  the  whole  voyage,  and  shall  give  good  and  sufficient  bail 
for  any  General  Average,  salvage,  or  other  expenses  which  may 
attach  to  the  same. 

IV.  No  freight  is  due  upon  goods  jettisoned  or  sacrificed  for 
the  common  benefit,  and  for  those  sold  to  raise  the  necessary  funds 
for  defraying  expenses  incurred  for  the  common  benefit ;  but  the 
c^vner  has  a  claim  on  General  Average  for  all  loss  of  freight  caused 
by  such  sacrifice. 

V.  No  freight  is  due  upon  goods  losb  by  perils  of  tlu  sea,  nor 
for  those  taken  by  public  enemy  or  by  pirates. 

Nor  upon  any  goods  sold  or  dfst roved  in  consequence  of  perils 

i  2 


308  MARITIME   LEGISLATION. 

of  the  sea,  in  any  port  or  place  other  than  the  port  of  destina- 
tion. 

VI.  If  the  captain  saves  the  goods  from  shipwreck,  or  if  he 
recapture  them  from  the  enemy  or  from  pirates,  and  if,  being  in 
a  state  to  be  transported  to  their  destination,  he  delivers  them, 
then  he  shall  be  entitled  to  the  whole  freight ;  if  not,  he  shall  be 
entitled  to  none,  but  without  prejudice  to  his  claim  for  wages  and 
expenses  while  engaged  in  recovering  the  goods. 

VII.  The  total  freight  is  due  upon  delivery  of  the  cargo  at  the 
port  of  destination,  although  diminished  or  deteriorated  by  perils 
of  the  sea,  if  the  consignee  takes  delivery,  and  in  this  case  the 
consignee  is  bound  to  take  delivery  of  all  consigned  to  him  by 
the  same  bill  of  lading,  or,  when  goods  are  in  bulk,  by  the  same 
ship.  If  the  consignee  will  not  take  delivery,  the  captain,  after 
due  authorisation,  may  sell  such  goods  to  pay  his  freight,  and 
for  any  deficiency  has  no  recourse  against  the  consignee  or  shipper, 
except  there  be  an  express  stipulation  to  the  contrary.  But  in 
no  case  shall  the  captain  be  entitled  to  receive  on  a  cargo,  deterio- 
rated during  the  voyage,  a  larger  amount  of  freight  than  he 
would  have  received  if  the  cargo  had  been  delivered  in  the  same 
state  in  which  it  was  shipped. 

VIII.  Advance  on  account  of  freight  is  always  liable  to  be  re- 
funded in  all  cases  involving  non-payment  of  freight,  except  where 
it  is  stipulated  to  the  contrary. 

IX.  The  owner  shall  have  an  absolute  lien  on  the  cargo  for  the 
freight  and  dead  freight. 

X.  The  contribution  of  freight  to  General  Average  shall  be  re- 
gulated according  to  the  first  paragraph  of  Section  X.  of  the  York 
rules.* 

Thr;  CiiAiiniAN,  having  after  taken  the  sense  of  the  meeting, 
declared  the  rules  to  l)e  formally  sanctioned,  and  he  requested  the 
lioriorary  secretary   to  take  the  necessary  steps  to  get  them  acted 

'  Vide  p.  207. 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  309 

I  have  not  been  able  to  find  traces  of  any  steps  which 
the  executive  council  of  the  National  Association  for  the 
Promotion  of  Social  Science  took,  after  the  results  of  the 
Sheffield  Congress  had  been  brought  under  their  notice,  in 
order  to  prevail  upon  the  Board  of  Trade  to  take  an  in- 
terest in  promoting  the  practical  use  of  these  deliberations, 
or  whether  they  met  with  any  success.  It  appears,  in- 
deed, just  as  with  the  sul)ject  of  International  General 
Average,  to  have  been  left  to  the  Association  for  the 
Reform  and  Codification  of  the  Law  of  Nations  to  resume, 
in  1879,  the  consideration  of  the  international  law  of 
Affreightment  at  the  very  stage  it  had  been  left  by  the 
Sheffield  Congress  in  1865. 

It  should,  however,  be  mentioned  that  as  far  back  as 
July  1871,  soon  after  the  opening  of  the  Suez  Canal,  a 
meeting  of  merchants  and  others  in  the  trade  to  the  East 
took  place  at  the  London  Tavern  for  the  purpose  of  trying 
to  agree  upon  an  '  Eastern  Trade  Bill  of  Lading.' 

The  committee  then  formed  included  not  only  repre- 
sentatives of  the  largest  houses  engaged  in  that  trade,  but 
the  principal  shipowners  as  w^ell  as  delegates  of  the 
Salvage  Association. 

By  the  terms  of  the  document  then  agreed  upon  after 
much  consideration,  steamers  were  allowed  to  call  at  in- 
termediate ports  for  coaling  and  other  purposes,  without 
such  calling  to  be  considered  a  deviation.  They  M-ere  also 
permitted  to  sail  with  or  without  pilots,  and  to  tow  and 
assist  vessels  in  distress ;  and  the  owner  was  exempted 
from  loss  arising  from  any  act,  neglect,  or  default  whatso- 
ever of  pilots,  master,  or  crew  in  the  navigation  of  the 
ship,  but  not  for  any  act  connected  with  the  stowage  or 
other  dealing  with  the  cargo  not  arising  from  sea  peril. 

So  long;  as  the  traffic  to  tlie  East  was  confined  to  the 
few  and  well-regulated  lines  of  steamers,  this  Ijill  of  lading 


310  MAEITLME   LEGISLATION. 

worked  satisfactorily,  but  the  immense  extension  of  the 
mercantile  navy  Avhicli  soon  afterwards  took  place  inau- 
gurated an  altered  state  of  circumstances.  Shippers  of 
merchandise  hesitated  to  concede  to  the  general  body  of 
shipowners,  their  masters  and  crews,  the  unprecedented 
concession  of  the  '  negligence  clause,'  which  they  had  been 
willing  to  concede  to  the  lines  of  steamers  referred  to 
above. 

A  general  confusion  then  arose ;  the  bill  of  lading 
which  originally  was  only  intended  for  the  few  lines  which 
traded  to  the  East  and  China,  was  adopted  by  other 
steamship  owners,  not  only  for  those  routes  but  also  for 
Australia  and  New  Zealand;  and,  as  if  this  was  not  enough 
innovation,  almost  every  shi]30wner  issued  a  separate  bill 
of  lading  for  his  steamers,  adopting  therein  any  conditions 
which  might  appear  useful  to  him,  quite  irrespective  of 
the  interests  otherwise  affected  by  the  document. 

Such  was  the  demand  for  ships  and  the  influence  of 
the  shipowners,  that  shippers  of  merchandise  had  very 
iVecjuently  to  suljmit  to  conditions  in  charter-parties  and 
bills  of  lading  which  previously  had  never  been  thought 
of,  and  which  were  neither  equitable  nor  reasonable  be- 
tween the  contracting  parties. 

It  therefore  became  an  absolute  necessity  to  consider 
by  what  means  the  shij^owner  and  the  merchant  could  be 
brought  to  an  agreement  on  these  matters.  The  subject 
ol"  a  gciK'ial  Law  of  Affreightment  and  a  uniform  ]5ill  of 
I.;i(liii<j-  bec-ame  henceforward  merc^ed  together.  Hence- 
forward,  whether  the  Law  of  Affreightment  or  the  Bill  of 
Lading  is  mentioned,  it  must  be  assumed  that  the  larger 
subject  combined  iji  both  expressions  is  under  consider- 
ation. 

']()  i-csniiH-  llic  Iiislorv  of  llic  discussion. 

At      tlic    sc\('utli     conrcrciicc    of    llic    Association    on 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  811 

August  14, 1879,  in  the  Guildhall  of  the  city  of  London,  Sir 
Travers  Twiss  in  the  chair,  the  honorary  general  secretary, 
Mr.  Jencken,  read  the  following  paper,  prepared  by  Mr.  H. 
lleinhold,  of  Calcutta  : — 

Eight  years  ago  a  committee  of  merchants  trading  with  the 
East  assembled  in  London  to  consider  and  amend  the  conditions  of 
bills  of  lading  for  steamships  ])assing  through  the  Suez  Canal,  and 
after  nearly  twelve  months'  deliberation  their  report  on  the  subject, 
dated  June  18,  1872,  unfortunately  left  the  matter  in  a  half- 
finished  state.  The  gentlemen  who  undertook  the  task  are  well 
known  in  the  Eastern  trade,  and  their  experience  and  high 
standing  are  a  guarantee,  not  only  that  the  matter  was  thoroughly 
investigated  in  all  its  bearings,  but  also  that  the  various  interests 
concerned  received  full  consideration  at  their  hands.  Although 
the  new  route  via  Suez  was  then  only  beginning  to  show  signs  of 
the  great  revolution  pending  in  all  matters  connected  with  Eastern 
commerce,  it  is  now,  and  has  been  since  its  construction,  absorbing 
the  greater  part  of  the  carrying  trade  from  the  East  to  Europe. 
The  attention  bestowed  at  that  time  upon  the  subject  under  dis- 
cussion proves  sufficiently  that  the  members  of  the  committee 
were  fully  alive  to  the  altei-ations  required  to  be  made  in  the  form 
of  bill  of  lading  generally  in  use.  , 

If  we  admit  that  shipowners  and  ship-agents  are  entitled  to 
claim  special  exemptions  from  the  ordinary  rules  and  are  to  have 
the  benefit  of  exceptional  clauses,  the  merchants,  on  their  part, 
have  equally  strong  grounds  to  jealously  prevent  exceptions  being 
made  to  override  the  ordinary  legal  enactments  for  the  protection 
of  goods  entrusted  to  the  care  of  owners  and  agents  as  carriers. 

For  more  easy  reference  I  annex  a  copy  of  the  report  issued 
by  the  committee  referred  to,  but  regret  that  no  copy  of  the  bill 
of  lading  as  originally  adopted  for  goods  outwards  is  in  my  pos- 
session ;  however,  those  more  nearly  interested  will  no  doubt  have 
guarded  their  own  interests  sufficiently  at  the  time  that  document 
was  finally  determined  upon  and  adopted  by  common  consent,  as 
stated  in  the  report. 

Kegarding  the  form  and  conditions  of  bills  of  lading  for  goods 


312  MARITIME  LEGISLATION. 

inwards,  i.e.  shipments  made  from  the  East  to  Europe,  no  such 
unanimity  prevailed,  and  the  various  forms  of  Lills  of  lading  now 
used  by  different  steamship  proprietors  differ  so  much  with  regard 
to  exemptions  claimed  from  acknowledged  responsibilities  as  to 
demand  attention  in  this  respect. 

As  Calcutta  merchants,  my  firm  has  on  more  than  one  occasion 
experienced  the  hardship  of  certain  clauses  to  which  I  draw  at- 
tention with  the  object  of  stimulating  a  discussion.  I  shall  in  the 
first  instance  point  out  some  glaring  inconsistencies  between  the 
main  part  of  the  bill  of  lading  and  the  exemption  clauses,  which 
are  in  contradiction  to  the  provisions  enacted  for  the  protection  of 
goods ;  and  have  no  doubt  the  experience  gained  by  merchants 
during  the  six  years  that  have  elapsed  since  the  committee  closed 
its  labours  will  now  enable  them  and  shipowners  to  arrive  at  a  more 
equitable  and  satisfactory  understanding. 

1 .  The  old  form  of  bill  of  lading  generally  commences :  '  Shipped 

in  good  order  and  condition  by .'     There  are  now  some  forms 

in  use  which  add  :  '  or  received  to  be  shipped,'  an  alteration  caused, 
as  I  believe,  by  the  altered  local  arrangements  in  Calcutta  since 
the  introduction  of  jetties  and  wharves  under  Port  Commissioners 
appointed  by  the  Local  Government.  Of  this  evidently  few  people 
in  London  are  aware,  as  I  know  of  recent  arbitrations  where  cap- 
tains had  signed  such  bills  of  lading,  when  they  had,  or  I  assume 
that  they  must  have  had,  the  goods  fully  under  their  control,  but, 
for  the  convenience  of  the  ship  in  the  matter  of  stowing  the  cargo, 
the  goods  were  actually  taken  into  the  hold  a  couple  of  days  later. 
Though  the  goods  were  actually  thus  duly  delivered,  still  it  has 
been  interpreted  and  looked  upon  as  akin  to  a  fraud,  and  mer- 
chants who  had  in  reality  nothing  to  do  with  the  signing  of  the 
documents  have  been  mulcted  in  allowances,  whilst  the  captain, 
the  responsible  master  who  signed  the  documents,  has  been  left 
undisturbed. 

2.  Furtiier,  when  in  the  beginning  of  a  bill  of  lading  it  is 
stated  that  the  goods  were  shipped  and  received  '  in  good  order 
;iii(l  condition,'  some  l>il!.s  ol"  lading  have  adopted  an  exemption 
clause  which  almost  lolallv  nullifies  the  aljove  recital,  viz. :  'the 


INTERNATIONAL  LAW  OF  AFFREIGHTMENT.  813 

ship  is  not  liable  for  iusufficient  packing  or  reasonable  wear  and 
tear  of  packages.' 

3.  In  the  main  part  of  the  bill  of  lading  it  is  said :  '  being 
marked  and  numbered  as  per  margin,'  whilst  an  exemption  clause 
states  that  the  ship  is  not  liable  '  for  inaccuracies,  obliterations  or 
absence  of  marks,  numbers,  address,  &c.  &c.'  On  the  boat-notes 
of  Calcutta  shippers,  which  accompany  the  goods  with  the  shipping 
order  and  custom-house  pass  on  board,  it  is  generally,  we  may  say 
universally,  stated  :  '  all  packages  in  bad  order,  slack  bags,  or  in- 
sufficiently marked,  &c.  &c.,  to  be  returned,'  by  the  receiving 
officer,  in  order  to  get  from  the  master  a  clean  bill  of  lading. 

Surely,  it  is  the  plain  duty  of  the  ship  or  its  receiving  officer 
to  see  that  the  goods  tendered  under  such  conditions  with  the 
shipping  order  be  in  good  condition,  properly  marked,  and  num- 
bered ;  but  on  arrival  of  the  vessel  cases  frequently  occur  (causing 
annoyance  and  loss  to  consignees)  which  must  have  arisen  from 
carelessness,  either  on  the  part  of  the  receiving  officer,  or  on  the 
part  of  the  dock  employes,  by  whom  delivery  is  made  haphazard. 

4.  Not  a  word  is  said  regarding  bad  stowage,  but  every  mer- 
chant is  more  or  less  aware  that  to  hurried  loading  (in  order  to 
give  quick  despatch  and  save  port  charges)  a  great  deal  of  leakage 
and  breakage  is  due,  from  which  exemption  is  likewise  claimed. 

5.  A  further  case  in  which  a  ship  is  not  liable  according  to 
these  exemption  clauses  is  '  loss  or  damage  by  dust  from  coaling 
on  the  voyage.' 

This  is  a  rather  ill-defined,  but  very  expansive,  clause  under 
certain  circumstances,  as  may  be  more  clearly  judged  of  by  a  case 
in  point.  A  steamer  brought  home  a  mixed  cargo,  comprising, 
amongst  other  goods,  white  rice  or  table  rice,  as  dead  weight,  in 
the  lower  part  of  the  ship,  of  which,  on  arrival,  it  was  found  that  a 
portion  was  mixed  with  coal  dust  (small  granular  parts  of  coal) 
and,  as  a  matter  of  course,  subject  to  a  heavy  allowance  in  price 
for  inferior  value.  As  usual,  shipowners  and  agents  disclaimed  all 
liability  and  pointed  to  the  above-cited  clause  of  the  bill  of  lading 
as  protecting  them,  which  clause,  according  to  their  account,  had 
been  adopted  by  the  general  committee  of  merchants  and  ship- 
owners. 


aU  MARITIME   LECJISLATIOX. 

Anybody  reading  the  committee's  report  will  find  that  no  such 
bill  of  lading  was  adopted,  and,  even  if  it  had  been,  it  would  not 
free  the  ship  from  its  obligation  to  protect  the  cargo,  received  in 
good  condition,  properly  and  efficiently,  which  cargo  those  inter- 
ested in  the  ship  bound  themselves  to  deliver  in  like  good  order 
and  condition.  Thus  far  goes  the  law ;  the  rest  is  the  shipowners' 
own  making  and  interj^retation. 

6.  In  some  bills  of  lading  it  is  claimed  that,  the  vessel  being 
ready  to  unload  immediately  on  arrival,  if  the  owners  or  consignees 
are  not  ready  to  receive  the  goods,  the  same  will  be  landed  or  put 
into  lighters  at  the  expense  of  the  consignees. 

The  ordinary  custom  in  London  is  seventy-two  hours'  notice  to 
be  given  that  the  ship  is  ready  to  discharge  at  a  given  date  and 
place.  Steamship  owners  have  curtailed  this  to  twenty-four  hours, 
and  law  and  equity  demand  fair  and  reasonable  time  to  be  given  to 
the  consignee,  which,  according  to  place  and  circumstances,  may 
proportionately  vary;  but  according  to  clauses  now  inserted  in 
some  bills  of  lading  the  ship  may  proceed  at  once  to  discharge 
goods,  leaving  consignees  to  find  them  afterwards.  The  smartness 
exercised  in  loading  or  discharging  huge  cargoes  of  merchandise  is 
often  praised,  but  at  whose  cost  this  is  being  carried  out  is  seldom 
examined  into. 

7.  I  cannot  fully  enter  into  all  details  in  this  paper,  but  I  must 
not  omit  to  notice  the  following  exemption  clause  :  '  The  ship  shall 
not  be  liable  for  incorrect  delivery,  unless  each  package  shall  have 
been  distinctly  marked  by  shippers,  before  shipment,  with  the  name 
of  port  of  destination.' 

By  referring  to  what  we  have  cited  under  paragraph  3,  and 
more  so  by  reading  the  bill  of  lading  itself  from  beginning  to  end, 
one  cannot  but  feel  the  bitter  irony  of  those  who,  after  all,  stand 
uiidt  r  the;  law  referring  to  carriers. 

I'nr  the  present  1  tliink  I  have  said  enough  to  make  merchants 
and  others  more  careful  in  looking  at  these  documents  and  to 
bestow  some  attention  upon  this  important  subject.  I  think  it 
dcsirabli'  tli;it  tlic  ((ucstion  should  ln'  ])l;iccd  licfore  (lie  Chambers 
of  r/oniincrce,  or  any  other  comniercial  associations,  of  the  various 
J  oris  in   tlic    l'];ist,  for  an  expression  of  opinion.     Local  arrange- 


INTERNATIONA!.   LAW   OF  AFFREIGHTMENT.  315 

ments  and  the  diversity  in  the  nature  of  the  various  articles  of 
merchandise  shipped  from  different  places,  demand  in  many  cases 
special  care  and  conditions,  and  in  my  opinion  it  would  be  unfair 
to  exclude  such  considerations  from  a  discussion  as  to  the  adoption 
of  a  definite  form  of  document  which  might  afterwards  obtain  or 
seem  to  carry  weight  as  settled  by  special  authority. 

I  take  the  liberty  of  suggesting  that  the  London  Committee 
might  reassemble  to  receive  and  discuss  suggestions  coming  from 
abroad,  and,  with  their  local  experience,  come  to  a  more  satisfactory 
conclusion  as  to  the  general  terms  of  such  a  document.  Moreover, 
London  has  the  advantage  of  having  representatives  of  nearly  all 
Eastern  firms,  as  well  as  the  greatest  shipping  interest,  concentrated 
in  its  limits,  and  it  affords  the  best  information  to  be  obtained  from 
landing  and  shipping  agents,  insurance  offices,  and  others  interested 
in  the  discussion. 

The  report  of  the  Committee  of  Merchants  was  as  follows : — 

The  Committee  entered  upon  its  duties  in  pursuance  of  the 
following  resolution,  passed  at  a  meeting  of  merchants  and  others 
interested  in  the  trade  with  the  East,  which  Avas  held  at  the  London 
Tavern  on  July  11,  1871:— 

'  That  a  committee  of  merchants  be  appointed  to  consider  all 
the  special  stipulations  that  have  been  introduced  into  bills  of  lading 
for  steam  vessels  and  to  confer  thereon  with  the  representatives  of 
the  steamship  owners  and  underwriters  with  a  view  of  drawing  up 
a  general  form  of  bill  of  lading  which  shall  be  equitable  in  its  con- 
ditions to  all  parties,  and  to  arrange  such  a  method  of  settling  the 
freight  as  may  remedy  existing  irregularities.' 

Power  was  also  given  to  the  committee  to  add  to  its  numbers, 
and  it  was  finally  constituted  as  follows : — Mr.  James  Macandrew 
(Messrs.  Matheson  and  Co.),  chairman,  Mr.  G.  Arbutlmot  (Messrs. 
Arbuthnot,  Latham  and  Co.),  Mr.  W.  Broughall  (Messrs.  Broughall 
and  Co.),  Mr.  W.  H.  Crake  (Messrs.  Crawford,  Colvin  and  Co.),  Mr. 
Lancelot  W.  Dent  (Messrs.  Dent,  Palmer  and  Co.),  Mr.  Horace 
Farquhar  (Messrs.  Forbes,  Forbes  and  Co.),  Mr.  John  Fleming 
(Messrs.  Smith,  Fleming  and  Co.),  Mr.  E.  Halton  (]\ressrs.  T.  A. 
Gibb  and  Co.),  Mr.  F.  W.  Heilgers  (]\Iessrs.  Wattenbach,  Heilgers 
and  Co.).  IMr.  John  E.  Kalli  Olessrs.  Ralli  r>intliers).  Mr.  George 


81G  MARITIME  LEGISLATION. 

Ross  (Messrs.  James  Wyllie  and  Co.),  Mr.  S.  L.  Schuster  (Messrs. 
Schuster,  Son  and  Co.). 

The  committee  has  likewise  had  the  benefit  of  the  valuable 
advice  and  assistance  of  Mr.  J.  A.  W.  Harper,  Secretary  of  Lloyd's 
Salvao-e  Association,  who  had  on  behalf  of  the  Association  devoted 
much  attention  to  the  conditions  of  bills  of  lading. 

As  convincing  proof  of  the  necessity  of  their  inquiries  and  of 
the  pressing  nature  of  the  evils  to  be  remedied  in  readjusting  the 
freight  contract,  the  committee  need  only  refer  to  a  sheet,  published 
by  Lloyd's  Salvage  Association,  and  very  generally  circulated  among 
merchants,  in  which  the  exemptions  of  the  ship  from  liability  in 
various  contingencies  are  classified  in  a  tabular  form.  There  was 
little  difficulty  in  determining  which  of  these  conditions  most  ur- 
gently called  for  abolition  or  alteration,  and  the  committee  then 
lost  no  time  in  seeking  the  co-operation  of  steamship  owners,  in 
arriving  at  a  common  understanding  upon  the  subject.  A  meeting 
of  the  latter  body  was  called  in  London,  and  a  committee,  of  which 
Mr.  C.  M.  Norwood,  M.P.,  was  chairman,  was  appointed  to  concert 
terms  with  the  merchants. 

The  two  committees  addressed  themselves  in  the  first  instance 
to  the  examination  of  the  bill  of  lading  outwards,  and  after  pro- 
longed discussion  and  a  series  of  compromises  on  both  sides  the 
'  Eastern  Trade  Bill  of  Lading  Outwards '  was  agreed  upon  and 
published  in  three  forms,  slightly  varied  to  suit  different  voyages  : — 

No.  1. — For  an  ordinary  voyage  to  the  East,  direct  or  trading 
at  intermediate  ports. 

No.  2. — For  a  voyage  to  India,  trading  at  Colombo,  Madras, 
or  other  open  roadsteads  on  the  Malabar  or  Coromandel  coasts. 

No.  3. — For  a  voyage  involving  transhipment,  the  steamer 
not  proceeding  to  the  port  for  which  she  accepts  cargo,  such  as 
Kangoon,  Batavia,  or  Japan. 

This  agreement  was  promptly  announced  to  merchants  in  a 
ciicular,  issued  by  the  chairman  of  the  committee,  dated  January 
20,  1872,  appended  to  which  were  copies  of  the  revised  forms  of 
bills  of  lading.  'J'he  new  form  came  into  immediate  use,  and  it 
affords  the  committee  much  gratification  to  testify  that  it  has  been 
very  generally  accepted,  not  only  iu  London,  but  in  Liverpool  and 


INTERNATIONAL  LAW   OF  AFFREIGHTMENT.  317 

Glasgow  also,  and  has  proved  a  useful  and  successful  document. 
One  exception  to  its  universal  use  is  the  Liverpool  line  of  steamers 
to  the  Straits  and  China  known  as  Holt's  line.  The  committee  in 
their  circular  of  January  20  recommended  that,  as  far  as  practic- 
able, shippers  should  require  the  Eastern  trade  bill  of  lading  to  be 
used  by  any  steam  vessel  in  which  they  engaged  to  ship  goods  vid 
the  Suez  Canal.  Had  this  recommendation  been  more  generally 
acted  upon,  there  is  no  doubt  that  the  managers  of  Holt's  line 
would  have  ere  now  adopted  the  new  form ;  but,  if  shippers  of 
goods  put  it  in  their  power,  by  continued  support  of  their  steamers, 
to  decline  compliance  with  the  agreement  accepted  by  all  other 
private  steamship-owners  in  the  trade,  the  efforts  of  the  committee 
to  benefit  merchants  by  the  introduction  of  an  improved  system  are 
so  far  frustrated.  The  committee  believe  that  the  results  of  the 
agreement  have  been  beneficial  alike  to  shipowner  and  merchant, 
and  that  the  advantages  of  uniformity  of  system  have  not  been  too 
dearly  purchased  by  the  compromises  acceded  to.  If  shippers 
entertain  the  same  view,  it  rests  w^ith  themselves  alone  to  necessi- 
tate compliance  by  declining  to  ship  in  any  line  of  steamers  where 
the  Eastern  trade  bill  of  lading  is  not  recognised. 

With  the  two  great  companies  controlling  the  Overland  Route, 
the  Peninsular  and  Oriental  Steam  Navigation  Company  and  the 
Messageries  Maritimes  of  France,  no  negotiations  have  yet  been 
entered  into.  There  are  many  stipulations  in  their  respective  bills 
of  lading  which  seem  to  the  committee  to  be  very  prejudicial  to 
the  interests  of  merchants ;  but  it  must  be  conceded  on  the  other 
hand  that  their  mail  contracts  and  the  circumstance  of  their  beinor 
essentially  passenger  lines  impose  special  obligations  upon  them 
and  render  stringent  conditions  more  necessary  than  in  the  case  of 
other  steamers.  At  the  same  time,  when  the  vessels  pass  through 
the  Suez  Canal,  as  is  now  very  generally  done  by  the  French  and 
occasionally  by  the  English  company,  the  committee  see  no  good 
reason  why  a  slight  modification  of  the  Eastern  trade  bill  of  lading 
should  not  meet  all  the  exigencies  of  the  case  ;  and  it  rests  with 
shippers  to  take  measures  for  bringing  about  an  alteration  in  this 
respect. 

Copies  of  the  three  forms  of  the  Eastern  trade  bill   of  lading 


318  MARITIME    LEGISLATION. 

outwards,  attested  by  the  chairmen  of  the  two  committees,  have 
been  deposited  in  the  custody  of  the  Committee  of  Lloyd's,  to  serve 
for  purposes  of  reference  as  the  standard  text  of  the  bill  of  lading 
agreed  upon. 

The  committee  regret  that,  in  the  case  of  the  bill  of  lading 
inwards,  they  are  unable  to  report  an  equally  satisfactory  result 
of  their  labours.  It  was  agreed  between  the  two  committees  that 
the  bill  of  lading  outwards  should  be  substantially  followed,  with 
such  verbal  altei-ations  as  were  required  by  the  change  of  voyage  ; 
but  that  special  clauses  applicable  to  the  port  of  London  should 
be  introduced  respecting  the  delivery  of  cargo  and  payment  of 
freight.  The  system  of  discharging  ships  at  Liverpool  and  else- 
where is  very  diffei'ent  and  might  require  differently  worded 
clauses,  wh  ich  the  trade  of  the  various  ports  interested  would  have 
to  adjust. 

It  was  soon  found  that  on  these  clauses  the  two  committees 
were  essentially  at  variance.  As  respects  the  delivery  of  cargo, 
the  difference  of  opinion  was  not  so  wide  as  to  preclude  the  hope 
of  an  arrangement,  the  merchants  mereh'  desiring  to  be  protected 
against  a  sui*prise  by  which  their  goods  would  be  warehoused  by 
the  agents  for  the  ship,  before  they  knew  or  had  the  means  of 
knowing  of  her  arrival.  The  following  was  the  clause  proposed  by 
the  committee  : — 

'  One  clear  working  day  after  the  day  on  which  the  ship  reports 
at  the  custom-house  and  is  docked  is  to  be  allowed  for  applications 
for  dt'livpry ;  and  if  thereafter  the  goods  are  not  removed  without 
delay  hj  the  consignee,  the  master  or  agent  is  to  be  at  liberty  to 
land  and  warehouse  the  same,  or,  if  necessary,  to  discharge  into 
hired  lighters  at  the  risk  and  expense  of  the  owners  of  the  goods.' 
The  clause  liiiully  i)r()i)osed  by  the  shipowners'  committee  was 
as  follows  : — 

'  Twenty-four  hours  (Sundays  and  holidays  excepted)  after  the 
ship  reports  at  the  ciistf»iii-liouse  and  is  docked  are  to  be  allowed 
for  a])plications  for  drliNcry  ;  and  if  tlicrcafter  the  goods  are  not 
n-inoved  by  tin;  consignee  immediately  lliey  come  to  hand  in  dis- 
charging tin-  sliip.  Ilie   master  or  agent   is  to  be  at  liherty  to  land 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  319 

and  warehouse  the  same  or,  if  necessary,  to  discharge  into  hired 
ligliters  at  the  risk  and  expense  of  the  owners  of  the  goods.' 

As  it  is  not  customary  or  practicable  in  London  to  give  con- 
signees notice  of  tlie  ship's  arrival,  except  by  publication  of  her 
report  in  the  bill  of  entry  the  morning  after  it  is  made,  the  clause 
adopted  by  your  committee  seems  decidedly  the  more  reasonable  of 
the  two,  especially  as  the  hour  of  the  ship's  report  is  a  point  on  which 
the  consignee  of  goods  cannot  possess  any  evidence.  Moreover, 
the  bulk  of  the  warehousing  entries  would  certainly  be  passed 
within  twenty-four  hours,  and  the  steamer's  discharge  be  thus  very 
rai'ely  interrupted,  while,  if  she  landed  the  whole  of  her  cargo  on 
the  dock  quay,  as  is  most  usually  done,  no  interruption  at  all  could 
take  place. 

On  the  more  difficult  question  as  to  the  mode  of  paying  freight 
some  explanations  are  necessary.  When  the  terms  of  the  bills  of 
lading  now  used  run,  '  freight  payable  in  London,'  'freight  payable 
on  delivery,'  or  even  '  freight  payable  as  customary,' the  shipowners 
contend  that,  according  to  the  usage  established  by  themselves 
since  the  introduction  of  steam-vessels  into  the  trade  with  the 
East,  they  are  empowered  to  detain  the  goods  on  board  or  in  the 
dock  or  a  warehouse  of  their  own  selection,  until  the  freight  is  paid 
in  advance  of  delivery,  or,  which  is  practically  the  same  thing-, 
simultaneously  with  delivery.  It  will  not  be  forgotten  that  this  is 
precisely  the  grievance  of  which  merchants  have  for  years  past 
complained,  and  to  remedy  which  was  one  of  their  principal  objects 
in  organising  a  committee  of  their  number.  The  shipowners' 
committee  continue  to  maintain  the  above  position,  and  their 
chief  arguments  for  so  o  ing  may  be  thus  expressed  : — 

I.  That  payment  in  adv^ance  of  delivery  is  now  the  established 
usage  of  the  trade. 

II.  That  it  is  necessary  for  their  protection  against  the  insolvent 
or  fraudulent  consignee  of  cargo. 

III.  That  it  is  unreasonable  to  expect  them  to  follow  goods  to 
the  wharf  or  warehouse  appointed  by  the  consignee,  either  for  the 
purpose  of  collecting  the  freight  upon  them  or  to  ascertain  the 
correctness  of  delivery. 

IV.  That  woods  in  transit  to  the  wliar  f  or  at  the  wh:u-f  mav  be 


320  MARITIME    LEGISLATION. 

plundered  or  damaged  by  the  servants  or  agents  of  the  consignee, 
for  which,  in  the  absence  of  distinct  proof,  the  ship  would  be  held 

liable. 

Y.  That  a  laro-e  proportion  of  the  freight  earned  is  expended 
in  advance  on  coals,  canal  dues,  and  other  charges  peculiar  to 
steamers,  to  which,  therefore,  immediate  returns  from  their  earn- 
ings are  essentially  necessary. 

VI.  That  to  defer  payment  of  the  inward  freight  for  thirty  days 
would  render  it  impossible  for  steamship  owners  to  carry  on  their 
business,  owing  to  the  large  increase  of  capital  which  it  would 
call  for. 

To  these  arguments  the  merchants  reply  : — 

I.  That  the  present  usage  as  to  payment  is  of  quite  recent 
introduction,  deriving  any  validity  it  has  from  the  terms  of  bills  of 
lading  drawn  up  by  shipowners  themselves,  and  that,  so  far  from 
being  established  by  common  consent,  it  has  been  constantly 
objected  to  by  consignees  of  goods. 

II.  That  the  shipowner  has  a  perfect  protection  for  his  freight 
in  what  is  known  as  the  dock  or  wharf  stop,  with  which  there  is 
no  intention  of  interfering,  and  by  which  the  warehouse-keeper 
eno-aofes  not  to  part  with  the  goods  to  anyone  until  he  receives  a 
release  from  the  shipowner.  To  meet  the  rare  case  of  insolvent  or 
fraudulent  wharfingers,  the  committee  were  quite  willing  to  con- 
cede that  the  shipowner  might  object  to  the  goods  being  delivered 
into  the  custody  of  any  such  until  his  freight  was  paid. 

III.  That,  to  constitute  proper  delivery,  the  consignee  must 
have  the  opportunity  of  ascertaining  that  his  goods  are  according 
to  bill  of  lading,  while  the  existing  system  does  not  afford  this 
opportunity,  either  on  board  ship  or  on  the  dock  quay.  The  ship- 
owner, therefore,  cannot  be  absolved  from  following  the  goods  to 
their  final  destination,  as,  until  they  are  there  examined,  weighed 
and  measured,  it  is  quite  out  of  his  power  to  render  a  freight 
account. 

1\'.  That  tliis  objection  merely  calls  for  an  improved  and  less 
hurried  inetliod  of  taking  the  <lelivery  account  as  between  the  dock 
company,  wlio  are  the  agt-nts  of  the  ship,  and  the  wliarfingers,  wlio 
are  the   atre.nt.s  oi'  the  merchants,  and  lliat  th(>  merchants'  com- 


IN'lM'.ItXATIONAL    LAW    OF    AFFJ.'KIGIITMI'AT.  ;52L 

mittee  would  j^ludly  co-operate  in  tin;  establishment  of  such  an 
improved  system.  Cases  of  ])lunder  could  then  be  traced,  without 
difficulty,  lit  fill'  jiartics  guilty  of  iliem. 

V.  &  VI.  That  it  is  no  part  of  the  merchant's  functions  to 
provide  capital  for  carrying  on  the  shipowner's  business,  and  that 
in  London  there  can  be  no  difficulty  whatever  in  procuring  money 
on  so  excellent  a  security  as  the  assignment  of  a  steamer's  freight 
payable  in  thirty  days. 

The  merchants'  committee    have  likewise  to    point   out   that, 
as  a  matter  of  fact,  the  larger  portion  of  a  steamer's  freight  is    ■ 
voluntarily  paid  before  her  discharge,  in  order  that  the  merchant 
may  obtain    possession  of  the    freight    release,  especially  in    the 
common  case  of  goods  sold  to  arrive.     They  object,  however,  to 
being  compelled  to  pay  upon  the  shipowner's  estimate  of  what  the 
freight  may  eventually  amount  to,  and  before  he  has  completed  his 
share  of  the  contract  by  the  delivery  of  the  goods.     The  term  of 
thirty  days  has  been  fixed  as  the  lowest  average  period  in  wdiich 
the  landing  account  of  an  ordinary  cargo  can  be  looked  for,  there 
being  no  desire  on  the  part  of  the  committee  to  delay  payment 
longer  than  may  be  requisite  to  ascertain  the  precise  amount  of 
freight  and  the  claims,  if  an^^  against  the  steamer  for  short  delivery, 
ship  damage  or  other  default. 

Upon  this  divergence  of  views  the  negotiation  between  the 
two  committees  has  been  broken  off.  The  only  concession  proposed 
by  the  shipowners'  committee  has  been  that  delivery  should  be 
made  on  prepayment  of  four-fifths  of  the  estimated  freight  in- 
stead of  the  whole.  This  suggestion,  however,  seemed  to  your 
committee  to  be  just  as  objectionable  in  principle  and  inconvenient 
in  practice  as  the  existing  system,  and  it  was  not  seriously  discussed. 
They  subjoin  the  clause  as  they  have  drafted  it : — 

'  Freight  for  the  said  goods  at  and  after  the  rate  of  per 

ton  of  delivered  is  to  be  paid  subsequent  to  the  landing 

thereof  by  cash  in  London  not  later  than  thirty  days  after  the  ship's 
reporting  at  the  Custom  House,  or  upon  any  earlier  day  on  which 
a  freight  release  may  be  required  and  received  by  the  consignee  ; ' 
While  the  wording  proposed  by  the  shijiowners  is  as  follows: — 
'  Freight  for  the  said  goods  at  and  after  the  raie  of  per 


322  MARITIME   LEGJSLA  IION, 

ton,  is  to  be  paid  by  cash  in  London,  when  the  ship  is  ready  to 
discharge.' 

The  shipowners'  committee  likewise  sought  to  re-introduco 
into  the  bill  of  lading  inwards  the  exemption  for  damage  ))y 
vermin  which  by  mutual  consent  had  been  expunged  from  the 
bill  of  lading  outwards.  They  further  proposed  for  your  commit- 
tee's adoption  the  following  clause  : — 

'  The  bill  of  lading,  duly  indorsed,  is  to  be  delivered  to  the 
accent  on  demand  after  arrival,  in  exchange  for  the  master's  copy 
and  an  order  for  the  delivery  of  the  goods.' 

On  this  latter  it  will  be  sufficient  to  observe  that  your  com- 
mittee obtained  a  legal  opinion,  which  was  to  the  effect  that  the 
shipowner  had  no  right  to  require  the  surrender  of  an  indorsed  or 
cancelled  bill  of  lading,  until  he  had  completed  delivery  of  the 
goods  comprised  in  it. 

The  committee,  having  devoted  much  care  to  the  drafting  of 
the  bill  of  lading  herewith,  styled  the  '  Eastern  Trade  Bill  of 
Lading  Inwards,  No.  4,'  recommend  it  for  adoption  by  merchants 
trading  to  the  East,  and  would  urge  them  to  use  their  best  efforts, 
through  their  correspondents  abroad,  to  have  it  recognised  and 
brought  into  use  at  the  ports  of  shipment,  declining,  so  far 
as  may  prove  practicable,  to  allow  their  goods  to  be  shipped  by 
steamers  the  owners  of  which  continue  to  enforce  the  use  of  the 
old  forms. 

In  the  committee's  circular  of  January  20  it  was  recommended 
that,  to  ensure  the  benefit  of  a  complete  protection  to  sea  risks,  the 
policies  taken  out  on  voyages  by  steamer,  via  the  Suez  Canal, 
should  cover  the  merchandise  'in  terms  of  the  Eastern  Trade  Bill 
of  Lading.'  AVhen  this  recommendation  was  brought  before  under- 
writers, the  clause  suggested  was  at  once  objected  to  as  imposing 
upon  them  new  and  undefined  liabilities.  A  meeting  was  held  at 
Lloyd's  on  February  2 1 ,  which  resulted  in  the  appointment  of  a 
committee,  representing  both  the  insurance  companies  and  private 
underwriters,  to  consider  the  question  further,  and,  if  jiossible,  to 
come  to  an  agreement  respecting  it.  With  this  committee  the 
siibjfci  has  been  very  fully  considered  and  discussed  by  your  com- 
niitt<'f',     Tlir-  inteutinn  nf  vniir  romniittpo  in  tluMV  original  rocom- 


INTI:KNATI(>XA1.    law    of    AFFREIGIITMKXT.  323 

mendation  was  sufficiently  evident  from  their  expressing  their 
object  to  be  tlie  more  complete  protection  of  the  sea  risks  to  which 
the  bill  of  lading  related  ;  but  they  are  quite  willing  to  admit  that 
the  language  proposed  for  the  clause  was  too  wide  and  vague  in  its 
terms,  and  might  have  been  interpreted  as  involving  underwriters 
in  some  of  the  lialjilities  from  which  shipowners  had  by  the  revised 
bill  of  lading  been  specially  exempted.  In  order  to  draft  a  clause 
more  exact  in  its  wording,  the  first  matter  to  be  determined  was 
the  precise  meaning  attached,  both  by  the  assurers  and  the  assured, 
to  the  risks  covered  by  a  policy  on  goods  which  had  been  shipped 
under  the  Eastern  Trade  Bill  of  Lading.  On  this  point  the  Com- 
mittee are  happy  to  state  that  they  have  arrived  at  a  satisfactory 
understanding  with  the  underwriters'  committee,  of  which  the 
following  is  an  abstract  :■ — 

'  The  underwriters'  risk  on  the  voyage  named,  calling  at  the 
intermediate  ports  named,  is  to  include — 

'  Coaling  at  other  intermediate  ports  not  named. 

'  Taking  in  and  discharging  cargo  while  so  coaling. 

'  Sailing  with  or  without  pilots. 

'  Towing  and  assisting  vessels  in  all  situations  of  distress. 

'  Loss  or  damage  arising  from  the  machinery  or  boilers. 

'  Dangers  and  accidents  arising  from  the  navigation  of  the  Suez 
Canal. 

'  Any  act,  neglect,  or  default  whatsoever  of  pilots,  master,  or 
crew  in  the  management  or  navigation  of  the  ship,  provided  the 
expression,  '  management  of  the  ship,'  shall  not  be  held  to  include 
any  act  connected  with  the  stowage  or  other  dealing  with  the 
cargo  of  the  ship  not  arising  out  of  a  sea  peril — - 

'  In  addition  to  all  risks  comprehended  and  provided  for  in  the 
body  of  this  policy. 

'  The  underwriter  is  not  to  be  liable  for  acts  or  default  of  the 
shipper  unconnected  with  sea  perils,  such  as  insufficient  packing, 
incorrect  marking,  improper  description,  absence  of  declaration  for 
inflammable  or  dangerous  goods,  or  insufficient  declaration  of  value 
for  specie  and  valuables. 

'  The  underwriter,  however,  is  to  be  liable  as  heretofore  for  tlie 
consequences  of   sea  damage  or  sea    i)erils  of   any   kind,   such   as 


324  MAIUTIME   LlXUSl.ATION. 

leakage,  breakage,  sweat,  rust,  decay,  wlien  traceable  to  that 
origin,  but  not  otherwise.  Damage  by  coal-dust,  when  not  mixed 
up  with  damage  by  sea-water,  is  to  be  borne  by  the  merchant. 

'  In  case  of  the  goods  being  placed  in  quarantine  depot  afloat  or 
ashore  previous  to  the  final  delivery  to  the  consignee,  the  under- 
writers' risk  will  continue  until  such  final  delivery,  and  will  cover 
risk  of  boats  to  and  from  such  depot. 

'  In  case  of  blockade  the  underwriters  are  understood  to  cover 
the  voyage  to  the  port  of  discharge  selected  by  the  captain  as  fully 
and  eflFectually  as  to  the  port  of  discharge  named  in  the  policy, 
their  liability  ending  with  the  landing  of  the  goods  at  the  former 
destination. 

'  Should  the  voyage  be  extended  beyond  the  destination  named 
in  the  policy,  as  when  the  goods  cannot  be  found  or  from  stress  of 
weather  cannot  be  landed,  the  underwriters  are  to  be  entitled  to 
receive  additional  premium  for  the  extra  risk  incurred.' 

It  was  agreed  that  it  was  unnecessary  to  embody  the  whole  of 
this  understanding  in  the  policy,  as  most  of  it  is  universally  ac- 
cepted by  underwriters.  It  is  true  that  the  legal  construction  of  a 
policy  of  insurance  would  not  go  beyond  its  expressed  conditions ; 
l)ut  after  a  recorded  declaration  of  the  meaning  attached  to  it  by 
the  representatives  of  both  merchants  and  underwriters,  it  need 
hardly  be  feared  that  the  latter  would  contest  a  claim  which  clearly 
fell  within  the  scope  of  the  declaration.  The  efforts  of  the  two 
committees  were  therefore  directed  to  framing  a  clause  which  should 
embody  such  conditions  of  the  bill  of  lading  as  were  not  sufficiently 
protected  by  the  ordinary  practice  of  underwriters,  and  especially 
a  deviation  clause  which  would  cover  the  deviation  permitted  in 
the  bill  of  lading  for  coaling  purposes,  for  towing  vessels  in  distress, 
and  for  proceeding  to  another  port  in  case  of  blockade.  The 
following  is  the  clause  that  has  been  agreed  upon  by  the  two  com- 
mittees, to  be  printed  on  a  slip  and  attached  to  the  margin  of  the 
policy,  when  so  required  l)y  the  assured  : — 

'  ^I'he  goods  herel)y  insured  being  shipped  under  the  Eastern 
Tr:i(lc  I'ill  of  leading,  No.  ,  it  is  agreed  that  tlic  terms  of  this 
policy  shall  ;i|'|ily  lo  the  following  sea.  ])erils  therein  referred  1o,  in 
a<lditioii  to  sncli  risks  as  uvr  alri'a(l\'  licrchv  coveivd  : — 


INTEUNATIUNAL   LAW    OF    AFFREIGFITMEXT.  3->5 

'  I.  All  deviation  of"  voyage  provided  for  in  the  said  bill  of  lading 
witli  any  risk  of  land  carriage  incidental  to  the  voyage. 

'2.  Sailing  with  or  without  pilots;  and  any  act,  neglect  or 
default  whatsoever  of  pilots,  master  or  crew  in  the  management  or 
navigation  of  the  ship,  improper  stowage  excepted. 

'  o.  All  risks  attending  the  goods  by  reason  of  their  discharge 
into,  retention  at,  and  dt'livL-ry  iVoiu  any  quarantine  depot  afloat  or 
ashore. 

'  4.  In  case  of  the  goods  being  carried  on  to  a  more  distant  poi't 
through  stress  of  weather,  or  because  they  camiot  be  found,  the 
marine  risk  of  the  additional  voyage,  as  well  as  of  the  return  voyage 
to  their  destined  port,  the  assured  agreeing  to  pay  for  such  extra 
risk  such  premium  as  may  be  agreed  upon. 

'  The  attention  of  your  committee  has  been  directed  to  a  discus- 
sion, originated  in  the  "  Times  "  newspaper,  as  to  the  risk  of  fire  on 
the  dock  quays,  when  cargo  is  landed  there  by  the  ship  before  its 
tinal  delivery  to  the  consignee.  It  seems  very  doubtful  whether  a 
claim  for  loss  so  caused  would  attach  under  the  marine  policy,  the 
obligations  of  which  are  discharged  when  the  goods  "  are  safely 
landed."  It  has  even  been  doubted  whether  a  policy  "  including 
risk  of  boats,"  would  cover  the  lighterage  to  a  wharf,  after  the 
vessel  had  been  docked,  and  the  goods  placed  in  the  first  in- 
stance on  the  quay.  The  only  sufficient  remedy  is  to  introduce 
a  special  clause  into  policies  on  goods  destined  for  London, 
whether  issued  at  home  or  abroad,  to  the  effect  that  the  goods 
are  covered,  if  landed  in  transit  for  delivery  to  the  consignee, 
or  while  being  conveyed  by  boats  or  craft  to  his  warehouse. 
This,  of  course,  would  have  to  be  a  matter  of  special  agreement 
in  each  case. 

'  It  is  only  requisite  to  add  that  the  committee  is  now  dissolved, 
as  its  functions  terminate  with  the  issue  of  this  report.' 

]Mu.  Jencken  then  moved :  '  That  a  committee  be  appointed  to 
consider  the  question  submitted  by  Mr.  Reinhold  on  behalf  of  the 
Chamber  of  Commerce  of  Calcutta,  regarding  bills  of  lading  for 
steamships  passing  through  the  Suez  Canal,  and  that  such  com- 
mittee be  empowered  and  instructed  to  act  in  concert  with  the  ex- 
isting committee  of  the  General  Shipowners'  Society,  the  executive 


32G  MARITIME    LEGISLATION. 

council  to  nominate  the  members  of  the  committee  and  to  add  to 
their  number  from  time  to  time  as  they  shall  think  fit.' 

This  motion  was  seconded  by  Mr.  H.  J.  Atkinson,  Chairman  of 
the  Hull  Chamber  of  Shipping,  and  was  carried. 

Thereupon  I  read,  at  the  request  of  the  executive  council,  a 
paper  in  which  I  stated  fully  what  led  to  the  Sheffield  Congress, 
reported  its  result,  and  concluded  : — 

'  The  executive  council  of  this  Association  will  be  glad  if  the 
gentlemen  who  take  an  interest  in  this  subject  will  form  or  ap- 
point a  committee  for  the  purpose  of  considering  the  Sheffield  pro- 
posals and  reporting  at  the  next  meeting  the  result  of  their  de- 
liberations, with  a  view  to  the  establishment  of  an  international 
law  of  Affreightment.' 

Dr.  E.  N.  Eahusen,  of  Amsterdam,  Counsel  to  the  Nederlandsche 
Handelsmaatscliappij,  expressed  his  concurrence  in  the  views 
enunciated  by  me  and  spoke  in  support  of  my  suggestion,  to  which, 
after  listening  to  some  observations  from  Mr.  Manley  Hopkins 
and  Mr.  J.  E.  C.  MuNRO,  of  London,  and  from  the  learned  Chair- 
man, the  conference  acceded,  it  being  determined  to  leave  the 
selection  of  the  members  of  the  committee  to  the  executive 
council . 


According  to  tlie  report  of  the  proceedings  of  the 
eighth  conference  of  the  Association,  hekl  at  Berne  in  the 
next  year,  the  following  took  place  on  Angust  26,  188U, 
Dv.  F.  Sie^'eking,  of  Hamburg,  tlie  President  of  the  Con- 
lerence,  in  tlie  cliair  : — 


Mk.  Ciiaklks  S'rniHS,  of  London,  read  the  report  of  the  coni- 
)nittee  upon  Affreightment,  which  was  as  follows: — 

'  In  pursuance  of  the  resolution  passed  by  the  general  con- 
ference of  the  Association  on  August  14  of  last  year  at  the  Cuildhall, 
TiOndon,  the  executive  council  .•ip])oiiiJ('d  tlie  following  gentlemen — 
Dr.  E.  E.  Wendt  fr'hairman),  Mr.  -I.^lin  Clover,  Mr.  Richard 
l.owndes,  Mr.  Ole  .Mr.llor,  Mr.  Philip  If.  Rathbone,  and  Mr. 
Charles     Stubbs  (lidu.   Sec.)     your     coniiiiittee    to    consider    tlie 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  ^-17 

subject  of  iiu  latfrnational  Liivv  of  Attivii^-litmcnt,  us  originally 
suggested  by  Mr.  T.  C.  Engels  and  Mr.  I'L  van  Peborgli  of 
Antwerp,  in  18G  !•,  and  enil)odied  in  the  Sheffield  rules  of  1865, 
and  to  report  the  result  of  their  deliberations  to  the  conference  at 
Berne. 

'Your  committee,  having  fully  discussed  tlie  subject,  and  being 
unanimous  in  their  oi)inion,  report  as  follows: — 

•  That  the  Sheffield  rules,  on  which  the  chairman  of  your 
committee  founded  his  report  to  the  conference  last  year,  were 
based  on  the  principle  of  English  common  law  of  no  appoil  ion- 
ment  of  freight  ^^/'O  ndd  Itineris  penidi  (or  distance  freight). 

'  That  the  reasons  in  favour  of  this  principle  are  constantly  gain- 
ing in  force,  while  the  practice  of  effecting  insurances  on  freight 
luis  become  so  general  that  the  adoption  of  the  principle  embodied 
in  the  Sheffield  rules  would  involve  merely  a  revision  of  the  terms 
of  freight  insurance,  which  would  not  be  in  any  way  difficult  of 
adjustment. 

'  That  the  adoption  of  this  principle  by  all  those  maritime 
luitions  whose  laws  still  allow  p'o  raid  freight  is  a  preliminary  step 
which  must  of  necessity  be  taken,  before  an  International  Law  of 
Affreightment,  based  upon  the  Sheffield  rules,  has  any  chance  of 
being  accepted. 

'  That,  under  these  circumstances,  your  committee  suggest  that 
it  is  desirable  that  the  local  committees  of  the  Association,  the 
Chambers  of  Commerce  and  any  of  our  members  who  feel  an  interest 
in  the  subject,  should  discuss  the  question  and  obtain  further  ad- 
hesions to  the  principle  referred  to,  and  should  communicate  before 
the  end  of  the  year  to  your  committee  the  result  of  their  discussions 
and  efforts,  in  order  to  enable  your  committee  to  make  a  further 
and  more  satisfactory  report  to  the  next  conference.' 

Letters  upon  the  subject  of  the  abolition  of  pro  rata  freight 
from  M.  E.  van  Peborgh,  of  Antwerp,  and  Mr.  Richard  Lowndes, 
of  Liverpool,  were  also  read. 

Dr.  Herman  Halkier,  of  Copenhagen,  referring  to  No.  7  of 
the  Sheffield  rules,  objected  to  recourse  being  given  to  a  captain  of 
a  ship  against  a  consignee  of  goods  who  refused  to  accept  delivery. 
The  consignee  was  in  no  way  a  party  to  the  contract  of  shipment. 


328  MARITIME   LEGISLATION. 

It  was  right  tLat  the  captain  should  be  able  to  resort  to  the  char- 
terer or  the  shipper,  but  not  to  a  person  who  merely  stood  in  the 
position  of  having  an  option  to  accept  or  decline  delivery. 

To  this  Mr.  R.  Benedict,  of  New  York,  answered  that  the 
consignee  equally  with  the  consignor  might  be  the  owner  of  the 
o-oods  or  the  agent  of  the  owner.  This  being  the  case,  it  might 
frequently  be  inequitable  that  the  consignee  should  not  be  respon- 
sible to  the  captain  for  non-acceptance. 

Dr.  F.  SiEVEKiXG,  of  Hamburg,  said  that  tbere  were  now  two 
questions  before  the  meeting  :   1,  the  abolition  of  pro  rata  freight; 
2,  the  captain's  right  of  recourse  in  case  of  the  consignee  refusing 
to  accept  delivery.     It  was  not  the  captain's  fault  if  the  goods  were 
damaged  by  the  sea,  or  if  the  consignee  wovild  not  accept  them ; 
and  it  was  but  fair  that  he  should  be  able  to  hold  some  one  liable 
upon  such  non-acceptance.    As  his  contract  was  with  the  consignor, 
the  latter  appeared  to  be  tlie  person  to  whom  he  should  be  entitled 
to  look  for  redress.     What  precise  remedy  was  to  be  given  to  him 
was  another  thing :    the  words  always  employed  in   the  contract 
were  :  *  on  right  and  true  delivery  of  the  goods.'     A  very  important 
objection  to  pro  rata  freight  was  the  difficulty  of  apportionment. 
Delivery  at  the  Cape  of  Good  Hope  of  goods  shipped  from  London 
for  Australia,  or  ricH  rersd,  could  not  be  considered  a  half  perform- 
ance   of  the    contract  to  carry.     By  such  delivery  the  consignor 
might  be  placed  in  a  worse  position  than  if  he  had  never  shipped 
his  goods.     It  must  not  be  forgotten  that  it  was  always  in  the 
captain's    ])ower  to  earn  the  whole  of  the  freight  by  forwarding 
the  goods  l)y  another  vessel.     If  pro  rata  freight  were  abolished, 
numy  doubts  and  difficulties  would  be  removed,  and  an  uniformity 
which  was  much  to  be  desired  would  be  established  between  the 
lawsofdreat    Dfitaiu   and   tlu'   oilier  comiuercial   countries.      The 
l.iw    (if   his  own    couuti'v,    (Jermany,    in   no   way    recognised  the 
|>riiici|)h'  <>{' jiro  ralii  fi'cight. 

M.  TllEcjDORE  C.  Fi.\(;El,S,  of  Ant  wcrp.  Chairman  of  Ihe  Belgian 
lilovd,  |)()intcil  fiiit  thai  it  was  always  o[)('n  to  the  i"ij)taiu  to 
jstipnlate  for  /im  rahi  freight,  where  he  thought  it  necessary  I'or  the 
prntectiri!!  of  his  intei'csts  to  do  so;  foi-  instance,  in  the  case  of 
ncrislnilile    'jihkIs.      So   long  as   ciiptains  of  ships    knew    that   they 


INTKIiXATlOXAL    LAW    OK   AFFl.'KKillTiMKNT,  .".29 

would  always  earn  their  distance  freight,  so  long  would  they  l)e 
indifferent  as  to  what  became  of  their  cargoes.  He  moved: 
'  That  lu-o  nihl  fn^ght  should  be  abolislied.'  This  was  secondi'd 
by  me. 

l)u.  C.  C.  ])rTiLii,  of  Rotterdam,  in  speaking  to  the  motion, 
declined  to  accept  all  the  principles  laid  down  in  the  Slicdield 
rules.  The  pro\isiou  contained  in  Rule  5,  that  '  no  fi'eight  is  due 
upon  goods  sold  or  destroyed,  in  consequi'uce  of  perils  of  the  sea, 
in  any  port  or  place  other  than  the  port  of  destination,'  would 
tempt  the  captain  of  a  merchantman  to  carry  his  cargo,  however 
much  damaged,  at  all  hazards  on  to  the  end  of  the  voyage  for  the 
single  purpose  of  earning  his  freight. 

Mr.  F.  R.  Coudkrt,  of  New  Y'ork,  moved  as  an  amendment : 
'  That  freight  i^ro  rata  itineris  pcractl  should  be  abolished.' 

Mr.  Coudert  thought  that,  unless  the  words  '  itinerU  pertirtr 
were  expressed,  then,  under  the  resolution,  freight  would  not  be 
payable  upon,  say,  400  out  of  500  barrels  of  oil,  which  was 
obviously  not  what  was  intended. 

After  some  further  remai-ks  from  Mr.  C.  Stubbs,  of  London, 
the  amendment  was  adopted  by  the  mover  and  the  seconder  of  the 
resolution  and,  upon  being  j^ut  to  the  meeting,  was  carried  by  15 
votes  to  3. 

It  was  also  agreed  that  the  existing  committee  upon  Affreight- 
lUfUt  should  be  continued  for  another  year. 

We  come  now  lo  the  more  practical  proceedings  in 
this  matter  at  the  ninth  conference  of  the  Association  at 
Cologne  in  Angust  1881,  when,  on  the  Iviliof  that  month, 
Mr.  11.  II.  Meier,  of  Bremen,  the  President  of  the  Confer- 
ence, in  the  chair,  Mr.  Eichard  Lowndes,  at  the  reqnest 
of  ihe  I're.sident,  then  read  the 

h'l-jiaii  of  the  Cuvmiittce  on  (in  Iniernational  Late  of  Affrclijhtiitunt 
and  Hills  (if  Jjidhuj. 

In  compliance  with  the  resolution  passed  l)y  the  Berne  Con- 
fci-em-e  of  the  Ast:ociation  last   vear.  that  the  Committee  on  the 


;3.J0  MAIJITLME   LEGISLATION. 

Iiitemational  Law  of  AfFreightment  should  be  continued  for  another 
year,  and  in  deference  to  the  desire  of  the  executive  council  that 
the  same  committee  should  also  consider  the  subject  of  bills  of 
ladincy  as  submitted  by  the  Bengal  Chamber  of  Commerce,  your 
committee  have  taken  the  necessary  preliminary  steps  to  call  the 
attention  of  those  interested  in  this  subject  to  its  discussion,  and 
have  also  agreed  to  report  to  you  as  follows  : — 

They  have,  after  careful  consideration,  come  to  the  conclusion 
that,  inasmuch  as  objections  have  been  raised  against  certain 
clauses  of  the  '  projet  de  loi'  adopted  by  the  Sheffield  Conference  in 
1805,  and  submitted  to  this  Association  in  1879,  it  would  be 
advisable  to  obtain,  before  further  action,  the  adhesion  by  the 
leading  mercantile  communities  to  certain  principles  involved  in 
the  matters  in  question,  such  as  the  abolition  of  fro  rata  freight 
(distance  freight),  and  the  non-liability  of  shipowners  for  the 
negligence  of  pilots,  masters,  and  crew,  &c.,  in  the  navigation  of 
their  vessels. 

Your  committee  consider  that  this  adhesion  can  best  be 
obtained  by  adopting  and  introducing  common  forms  of  the 
documents  used  as  contracts  of  Affi-eightment,  inasmuch  as  such 
contracts  must  necessarily  be  based  upon  the  principles  above 
referred  to. 

Your  committee  think  the  most  important  of  these  documents, 
and  the  one  of  which  the  adoption  of  a  common  form  would  be 
most  beneficial  and  expedient,  to  be  the  bill  of  lading.  They  con- 
.sider,  therefore,  that  the  efforts  of  the  Association  should  first  be 
directed  to  agreeing  upon  a  draft  bill  of  lading,  the  form  of  wdiich 
■would  be  generally  acceptable.  With  a  view  of  obtaining  a 
o-eneral  consensus  of  opinion  upon  the  question  of  what  this  form 
.should  be,  your  committee  have  communicated  with  a  large 
numljer  of  Chambers  of  Commerce,  and  other  mercantile  associa- 
tions of  various  nationalities,  requesting  them  to  consider  the 
subject  among  themselves,  and  to  send  representatives  to  this 
conference  to  take  j)art  in  tlic  discussion,  aiid  pcrliajjs  assist  in  the 
IVainiiig  of  such  a  docniiiciit. 

V'onr  comiiiitli*'  fully  ai)preciato  the  dilliculty  in  agreeing  upon 
such  common   fMriii   <>\'  bill   of  lading,  fair  in    its  terms  to  all  the 


IXTKKNATIONAI.    LAW   OF   AFFIIEKJIIT.MENT.  ;i.{l 

parties  iu  the  maritime  adventure,  to  shipowners  and  shippers,  and 
to  their  respective  underwriters.  They  are  encouraged,  however, 
by  tlie  knowledge  tliat  for  not  years  but  centuries,  and  until  a 
com panitively  recent  date,  there  was  one  common  form  so  generally 
used  that  it  may  fairly  be  said  to  have  been  universal  among 
maritime  communities. 

This  form  became  necessarily  obsolete  through  the  introduction 
of  steam  and  the  consequent  alterations  in  the  mode  of  conducting 
business  by  sea ;  and  changes  by  means  of  additional  clauses  were 
gradually  introduced,  the  effect  of  which  has  been  to  put  an  end  to 
the  ancient  uniformity,  without  introducing  in  its  place  any  other 
uniform  system. 

Your  committee  think  that  the  reform  of  such  a  state  of 
things  is  a  fair  and  proper  aim  of  the  Association,  and  they  trust 
that  the  discussion  hereby  introduced  may  lead  to  the  result 
desired. 

(Signed)  Ernest  E.  Wendt,  Chairman. 

JoHx  Glover. 
EicHARD  Lowndes. 
Ole  ]\Iolle]{. 
James  Poole. 
Philip  H.  Rathbone. 
Charles  Stubrs,  lion.  Sec. 

The  honorary  general  secretary  then  communicated  to  the 
conference  a  paper  contributed  by  Mr.  Charles  Stubbs,  M.A., 
LL.M.,  of  Loudon, 

On  tJie  Formulation  of  a  Model  Bill  of  Laclimj. 

A  general  feeling  has  for  some  time  been  prevalent  among 
shipowners,  merchants  engaged  in  export  trade,  insurance  com- 
panies, and  others  interested  in  questions  of  Affreightment,  that 
in  place  of  the  diverse  forms  of  bills  of  lading  now  in  use,  one 
common  foim  should  by  agreement  be  drawn  uyi,  to  be  used 
universally  in  all  trades,  and  whether  the  cturving  ship  be  a  sailing 
or  a  steam  vessel. 


■^>y2  MARITIME   LEGISLATION. 

The  reasons  for  the  adoption  of  a  single  recognised  form  are 
sufficient!}-  obvious.  At  the  present  time  a  shipper  of  goods  may 
be  wholly  in  ignorance,  until  his  merchandise  is  actually  on  board 
a  vessel,  what  the  terras  of  the  contract  are  into  which  he  is 
enterino- ;  he  may  then  have  them  disclosed  to  him  by  the  delivery 
of  a  bill  of  lading  so  comprehensive  in  its  conditions,  so  voluminous 
in  its  exceptions,  and,  in  many  cases,  so  complicated  from  the 
mixture  of  printing  and  manuscript,  and  the  variety  of  type,  and 
even  of  cross  printing,  that  neither  he  nor  anyone  else  who  may 
have  or  subsequently  acquire  rights  under  the  contract,  nor  the 
lawyers  into  whose  hands  the  document  frequently  comes  to  be 
explained,  can  do  much  more  than  guess  at  its  meaning.  Even 
if  the  particular  bill  of  lading  happens  to  be  reasonably  clear  and 
fair,  the  uncertainty  as  to  what  its  provisions  will  be,  as  to  what 
principles  it  will  be  based  on,  is  a  distinct  misfortune  to  the 
merchant.  He  may  wish  to  insure — in  the  vast  majority  of  cases 
he  does — he  cannot  even  tell  his  insurer  the  liabilities  the  latter  is 
to  take  on  himself.  In  any  case,  however,  in  the  complications  of 
modern  trading,  any  practice  that  causes  an  element  of  unneces- 
sary doubt  or  uncertainty  to  enter  into  the  transaction  conduces 
to  the  disadvantage  of  all  the  parties  concerned,  and  any  attempt 
to  abolish  such  a  practice,  if  unsuccessful,  is  praiseworthy;  if  suc- 
cessful, confers  no  inconsiderable  benefit  on  the  mercantile  world 
in  general. 

Recognising  the  work  to  be  of  vital  importance  to  commerce, 
and  thus  to  be  within  the  scope  of  their  duties,  the  Chambers 
of  Commerce  of  England,  both  individually  and  collectively,  have 
endeavoured  to  formulate  for  general  adoption  a  j^i'o  forma  bill  of 
hiding.  Their  efforts  have  not  indeed,  as  yet,  led  to  the  wished- 
for  result,  but  they  are  not  the  less  valuable  as  showing  the 
growing  desire  to  put  an  end  to  the  present  dubious  and  unsatis- 
factory state  of  the  Affreightment  question. 

Where  such  practical  and  influential  bodies  as  the  British 
( 'li;iiiil)i'i-s  oC  ('oiiiiiiei'ee  lia\c  I'aili'd  jo  aeliii've  tlie  t'lul  to  which 
they  had  devol  (  1 1  t  Inir  eiiei'gi<'s.  it  may  at  fii-st  sight  appear  to  be 
well-nigh  chini'  rii  al  for  a  niei'e  l;i\v-i-(Toi'miiig  association  to  affect 
an    expectation  of  luiiig   sLiccc.^>l'iil  ;   but    il    must  be  remembered 


lNTi:UXATIONAL    LAW   OF   ArFREIGIITMENT.  :}:}:] 

tliat  the  Association,  owing  to  its  heterogeneous  composition,  is 
peculiarly  representative  of  the  interests  involvetl,  that  the  intent 
of  its  conferences  is  to  afford  ample  opportunities  for  the  discussio:! 
of  questions  of  international  moment,  and  that  its  object  particularly 
embraces  the  codification  of  the  regulations  governing  such  ques- 
tions. As  an  humble  endeavour  to  afford  some  slight  assistance 
in  the  discussion  introduced  by  the  committee  of  the  Association 
on  bills  of  lading,  the  following  brief  remarks  are  offered  on  the 
formulation  of  a  typical  bill  of  lading. 

It  will,  it  is  ])resumed,  be  admitted  that,  in  discussing  a  model 
bill  of  lading,  the  interests  of  two  several  parties  need  alone  be 
considered — the  owner  of  the  carrying  vessel  and  the  owner  of  the 
cargo  carried  ;  all  other  j^jirties  concerned  must  derive  their  interest 
from  one  of  these  two  parties,  and  should  acquire  neither  more  nor 
less  than  the  just  rights  of  their  respective  principals.  What 
these  rights  should  be  and  in  what  words  they  can  best  be  enun- 
ciated are  the  two  questions  to  be  determined ;  the  former  is  com- 
plex, and  its  decision  a  matter  of  considerable  difficulty,  the  latter 
is  by  comparison  easy  ;  it  should  be  in  simple  language,  clear, 
concise  and  brief. 

In  discussing  the  principles  on  which  depend  the  respective 
rights  of  the  above-mentioned  parties,  it  may  be  well  to  consider 
what  the  object  of  each  is  in  becoming  a  party  to  the  contract  of 
affreightment. 

Now  the  cargo-owner  wishes  his  merchandise  to  be  carried  to 
its  destination  safely  and  speedily,  the  carrier  wishes  to  earn  the 
freight  for  the  carriage  of  the  merchandise  surely  and  in  the 
shortest  possible  time.  So  far,  apart  from  the  question  of  accident, 
negligence  or  fraud,  their  interests  are  so  nearly  alike  that  the 
contract  can  easily  be  arranged  and  formulated  ;  it  is  in  the  deter- 
mination of  their  respective  liability  for  damage  arising  out  of  the 
latter  events  that  the  practical  difficulty  arises. 

Clearly,  on  principle,  each  should  bear  the  damage  which  is 
the  result  of  obvious  accident,  each  should  endure  or  be  respon- 
sible for  the  damaare  which  is  the  direct  result  of  the  fraud  or 
negligence  of  himself;  but  how  if  it  be  proximately  caused  by  the 
act  of  third  ])arties  without    any  blame  being  directly  attributable 


834  :\IARITIME   LKGISLATIOX. 

to  either  of  tlie  principals,   when  should  this  be  considered  tlie 
result  of  accident,  when  of  negligence  ? 

It  would  thus  appear  that  the  general  principles  may  be 
considered  practically  agreed  upon;  the  difficulty  arises  in  de- 
termining the   applicability  of  the  principles   in  each  particular 

case. 

Assuming  that  these  two  principles  should  govern  the  contract, 
it  is  proposed  to  consider  their  applicability  in  the  various  instances 
occurring  by  examining  the  clauses,  generally  termed  '  exceptions 
and  conditions,'  in  use  in  some  of  the  more  usual  forms  of  the  bill 
of  lading,  briefly  commenting  on  the  advisability  of  inserting  or 
discarding  su3h  clauses  as  they  are  discussed. 

'  Weight,  measure,  quality,  contents,  and  value  unknown,'  is  a 
condition  Avhich  appears  to  be  fair  to  both  parties.  If  any  diffi- 
culty arises  after  shipment  on  any  one  of  the  points  to  cover  which 
this  clause  is  intended,  the  dispute  must  resolve  itself  into  the 
question,  Was  or  was  not  the  merchandise  shipped  as  described  in 
the  body  of  the  bill  of  lading  ?  If  it  can  be  shown  not  to  have 
been  so  shipped,  the  cargo-owner  can  have  no  claim  ;  in  the  event 
of  the  converse  being  proved,  the  shipowner  should  be  considered 
liable  to  redeliver  the  cargo  in  the  same  condition  as  shipped. 
How  is  it  to  be  decided  in  what  condition  the  cargo  was  shipped  ? 
It  is  submitted  that  a  fair  way  to  determine  this  may  be  thus  laid 
down  :  It  should  be  agreed  that  a  statement  in  the  bill  of  lading, 
describing  a  condition  of  the  cargo  naturally  obvious  to  the  ship- 
owner or  his  representative  at  the  time  of  loading,  should  be  con- 
sidered as  irrimd  facie  evidence  against  him  as  to  such  condition 
when  so  shipped ;  otherwise,  in  the  case  of  the  condition  not  being 
in  accordance  with  the  description,  the  shipper  would  be  deprived 
by  the  shipowner's  neglect  of  the  opportunity  of  detecting  and 
rectifying  a  possible  fraud  or  mistake  at  the  time  when  alone  such 
detection  or  rectification  would  be  easy,  without  any  compensating 
equivalent  for  the  injury  thereby  done  him.  It  should  be  equally 
agreed  that  the  onus  of  detorniiiiiiig  a  condition  not  obvious  is  a 
burden  which  should  not  fid!  on  ilic  slii))0wner.  The  weight,  mea- 
sure, cpiality,  contents,  and  wilue  :iro  not  so  naturally  obvious 
witlioul-   an   inspection,  which    it  would   be   unfair  to  expect  of  the 


INrj-lKNATIONAL   LAW   OF   AFFREIGHTMENT.  .'«5 

sliipowuer,   unci    the   cuudltion  protecting  Iiiin    accord ing-ly    fVom 
bearing  this  onus  may  fairly  be  inserted. 

'  Reasonable  wear  and  tear '  is  naturally  in  the  nature  of  an 
accident  which  should  fall  on  the  owners  of  the  goods  suffering  the 
same.  '  Cutting  excepted '  is  a  qualifying  phrase  sometimes  added, 
but  this  is  unnecessary  verbiage,  for  cutting  cannot  be  considered 
to  come  under  the  description  of  '  wear  and  tear  '  in  any  way. 

'  Inaccuracies,  obliteration,  absence,  &c.,  of  marks,'  and  the 
like,  must  surely  be  an  improper  exception.  The  shipowner 
should  protect  himself  by  refusing  to  accept  unmarked  or  insuffi- 
ciently marked  goods;  subsequent  tampering  with  the  marks 
cannot  be  an  accident,  and  consequent  loss  thereby  caused  should 
not  fall  on  innocent  shippers. 

'  Leakage,  breakage,  heat  or  decay,'  is  a  phrase  of  doubtful  im- 
port ;  they  may  all  be  caused  by  '  inherent  vice,'  to  use  a  phrase 
the  meaning  of  which  is  well  known;  in  that  case,  again,  obviously 
cargo-owners'  risks  ;  but  heat  and  decay  may,  on  the  other  hand, 
be  caused  by  improj^er  stowage  or  want  of  ventilation.  Improper 
stowage  is  a  cause  beyond  the  control  of  the  cargo-owner,  but 
particularly  within  the  duty  of  the  shipowner  ;  want  of  ventilation, 
again,  may  be  a  necessary  result  of  bad  weather,  an  accident  of 
the  sea,  provided  against  in  a  later  clause,  or  it  maj  be  caused  by 
the  carelessness  of  the  master  or  crew.  It  will  be  submitted, 
infra.,  that  any  negligence  not  solely  in  the  navigation  of  the  ship 
should  not  form  the  basis  of  an  exception ;  here,  therefore,  all  that 
it  is  admitted  as  necessary  for  this  phrase  justh"  to  cover  is,  the 
result  of  '  inherent  vice.'  This  could  more  simply  be  done  by 
inserting  this  latter  term  alone,  but  the  alteration  is  after  all  un- 
necessary. It  has  been  laid  down  in  the  English  Courts  of  LaAv, 
that  where  damage  results  proximately  from  a  certain  cause,  such 
as  leakage,  for  instance,  but  mediately  through  some  wrongful  act 
or  neglect  (the  causa  caiisans)^  the  neglect,  and  not  the  proximate 
leakage,  is  considered  the  real  cause  of  damage ;  the  clause,  there- 
fore, will  mean  no  more  than  '  inherent  vice '  would,  and  may 
without  modification  stand. 

'  Sweat  and  rust '  can  only  be  caused  respectively  by  want  of 
ventilation,  a   peril  of  the  sea,  or   an   act  of  negligence,   and  by 


33G  MARITIME    LEGISLATION. 

insufficient    preparation  of  the  sliip  for  its  voyage,  an  improper 
omission  on  the  part  of  the  shipowner  himself. 

'  The  Act  of  God,  the  Queen's  enemies,  pirates,  robbers  by  land 
or  sea,  restraint  of  princes,  rulers,  or  people.'  This  is  an  old  and 
time-honoured  phrase,  the  meaning  of  which  has  become,  from 
frequent  discussion  in  the  Courts,  well  known,  and  against  which 
objection  can  hardly  be  maintained. 

'  Explosion  or  fire.'  The  same  remark  made  in  reference  to 
'  leakage '  applies  to  '  explosion  '  and  'fire.' 

'  Jettison,'  if  not  improper,  is  a  '  danger  of  the  sea,'  and  the 
word  may  be  omitted  as  redundant ;  if  improper,  is  a  default  of 
master  or  crew,  and  will  be  considered  under  that  head. 

'  Act,  neglect  or  default  of  master  or  crew.'     This  opens  up  the 
most  difficult  question  of  all^ — -who  is  to  be  liable  for  acts  which ' 
are  apparently  beyond  the  control  of  both  the  parties  to  the  con- 
tract ?     The  exception,  by  its  obvious  meaning,  excludes  the  idea 
of  accident ;  it  points  to  damage  caused  by  the  voluntary  act  of 
those  navigating  the  ship.    Clearly  the  cause  is  entirely  independent 
of  the  action  of  the  cargo-owner  ;  and  since  the  idea  of  accident 
is  excluded  by  the  principle  laid  down,  he  is  entitled  to  be  recouped 
for  the  loss  sustained.     Theoretically  he  should  be  reimbursed  by 
the  party  causing  the  loss,  the  master  or  crew,  as  the  parties  by 
who.se  immediate  defiiult  the  damage  is  done;  but,  as  a  rule,  it 
would  be  futile  to  expect  reimbursement  from  them  :  not  so  from 
the  shipowner,  and  if  he  is  also  a  party  to  the  act  or  default,  he 
must  also  be  hfld  liable.     Now  the  shipowner  is  obviously  not,  in 
point  of  fact,  a  participator  in  the  act,  but  (apart  from  special  con- 
tract) he  is,  by  reason  of  the  defaulting  party  being  his  servant, 
considered  as  a  participator  by  the  law  of  most  civilised  countries. 
There  are  two  parties :  one  must  suffer,  the  cargo-owner  is  absolutely 
free  from  blame  or  carelessness,  the  shipowner  is  so  likewise,  un- 
less it  be  that  he  has  not  exercised  due  care  in  the  selection  of  his 
.servants ;  it  is  impossible  to  determine  that  except  by  the  light  of 
the  subsequent  event ;  the  servant  has  been  negligent  or  worse,  he 
is  a  negligent  servant,  his  act  proves  it,  the  law  assumes,  not,  as  is 
fref|uently  said,  that  the  innocent  master  is  liable  for  the  negli- 
L'eiiee  of  ]\'\y.  servaiil,  Itiit    that  the  master  is  liable  as  having  been 


IXTl-llNATlONAL    LAW    OF   AFFHEIGIITMKNT.  337 

himself  guilty  of"  negligence  in  want  of  care  in  selecting  his 
servant.  This  may  seem  hard  upon  the  shipowner,  but  to  hold  the 
reverse  would  be  liarder  on  the  cargo-owner,  who  is  helpless  in  the 
matter  ;  and  the  experience  of  centuries  has  shown  the  wisdom  of 
the  princi[)l(^  involved.  There  must  be  a  pn'suiiiption  one  way  or 
the  other,  either  that,  however  negligent,  however  incompetent  the 
servant  is,  the  master  is  blameless,  or  that  the  negligence  of  the 
servant  is  a  proof  of  a  certain  amount  of  negligence  on  the  part 
of  the  master,  sufficient  to  make  him  responsible  for  the  resulting 
damage. 

Which  of  these  two  presumptions  is  the  most  equitable  can 
hardly  admit  of  doubt,  which  is  most  in  accord  with  policy  is  surely 
equally  clear  :  presume  the  innocence  of  the  master,  and  a  great 
inducement  to  him  to  exercise  care  on  behalf  of  parties  entirely 
dependent  on  him  for  its  exercise  is  withdrawn. 

The  reasons  in  favour  of  holding  a  shipowner  responsible  for  the 
negligence  of  his  servants  do  not,  however,  with  the  same  force 
apply  to  holding  him  liable  for  their  simple  errors  of  judgment ; 
there  is  no  necessity  for  a  man  ever  to  be  negligent ;  it  is  abso- 
lutely certain  that  he  must  be  always  liable  to  commit  errors  of 
judgment.  Now  the  great  majority  of  accidents  of  navigation, 
not  the  consequence  of  inevitable  accident,  result  chiefly  from 
errors  of  judgment ;  there  may  perhaps  be  some  carelessness  in 
addition,  but  the  main  cause  is  error  of  judgment.  It  would  seem 
llxir,  therefore,  for  the  shipowner  to  exempt  himself  from  liability 
for  the  result  of  such  accidents  ;  and  to  obviate  the  probability  of 
much  discussion  as  to  whether  or  not  the  accident  was  caused 
solely  by  an  error,  and  not  by  any  such  carelessness,  it  may  be  con- 
sidered fair  and  proper  to  insert  an  exception  against  '  acts, 
neglect,  or  default  of  master  and  crew,'  but,  for  the  above  reasons, 
strictly  restricted  by  the  words  '  in  the  navigation  of  tlie  ship,"  or 
others  to  that  effect. 

'Act,  &c.  ofl'ilols.' — This  is  quite  unnecessary;  the  acts  of  a 
pilot,  if  in  compulsory  employment,  do  not  involve  tli."  liabilily  of 
the  shipowner  ;  if  employed  otherwise  than  by  compulsion  of  hiw, 
ho  is  simply  a  member  of  the  crew,  and  the  exception  as  above 
will  cover  his  acts. 


r.38  .MAKITIMl-:    l.EGISl>ATIOX. 

'Bamdr./:— The  reasons  for  excluding  negligence  gvnenilly 
from  the  exceptions  apply  of  course  to  '  barratry.' 

•Dano-ers  or  accidents  of  the  seas  and  rivers'  is  a  ]>roper 
exception  to  insert  to  exempt  the  shipowner  from  liability  for 
dunao-e  resultino-  from  perils  of  the  sea  unconnected  with  acts  of 

nesfliofence. 

Without  useless  iteration,  it  would  be  difficult  to  deal  with 
the  nianv  other  conditions  annexed  to  some  bills  of  lading.  It  is 
submitted,  however,  that  the  above-mentioned  clauses  include  all 
the  exemptions  necessary  to  be  inserted. 

So  far  for  the  exemptions.  In  the  body  of  the  bill  of  lading- 
it  is  suo-o-ested  that  there  should  be  omitted  all  such  terms  as 
•  from  the  ship's  tackle,'  '  over  the  ship's  side,'  '  as  customary,'  &c., 
tt)  sio-nifv  the  time  of  delivery  when  the  shipowners  responsibility 
^hould  cease.  The  responsibility  should  cease  '  on  delivery  ; '  what 
delivery  is  cannot  be  described  in  one  document  to  suit  all  cases  ; 
it  nmst  depend  on  the  peculiarities  of  the  place  of  discharge,  and 
the  manner  of  unloading  there  customar}',  but  it  is  a  question  of 
fact  not  difficult  to  determine  in  each  particular  case. 

"Where  parties  other  than  the  master  sign  the  bill  of  lading 
there  is  always  a  difficulty,  in  case  of  dispute,  in  proving  the  au- 
thoritv  of  the  signor  to  sign  ;  on  the  other  hand,  if  the  master 
sio-ns  it — as  he  always  should — the  authenticity  of  the  document 
and  the  wording  of  the  terms  of  the  contract  are  placed  beyond 
dispute. 

Thf  number  of  C()i)ies  of  the  bill  of  lading  to  be  signed  is 
another  moot  jxiint;  but  it  is  clear  that  the  number  should  be 
limited,  to  avoid  as  much  as  pr>ssible  the  chance  of  frauds  being 
succcssfuUv  ])erpetrated,  such  as  the  one  which  gave  rise  to  so 
nnu-h  litigation  iu  the  case  of  Cilyn,  Mills  aiul  Company  r.  The 
Hast  and  West  Jiulies  Dock  Tomijany  (Law  lv<-]i.  oQ.  B.  D.  120; 
(i  Q.  H.l).   17".;. 

In  (Hilcr  io  make  thes(^  observations  more  ch'ar  and  intelligible 
;i  (lr;ifl  bill  of  lading  eiiilio(]yiiig  tlic  results  arrived  at  is  annexed. 

It  I-  not  expected  that  llic  remarks  herein  expressed  will  meet 
with  gr'uenil  ajiproval,  licit  hn'  is  it  suggested  that  the  model  form 
is   in   anv   wav    perfect  :    liul    il     as   may    percliance   happen,   they 


INTEllXATIONAL    LAW   OF   AFFKEIGIITMEXT.  ^'.'M 

should  assist  iu  any,  even  tli(i  smallest,  degree  tlie  deliberations  ot 
the  Association  in  their  efforts  to  formulate  a  bill  of  lading  which 
will  bo  fair  in  its  icruis  and  generally  acceptabl(\  the  purpose  of 
the  writer  will  have  been  n)ore  than  ami)ly  fulfilled. 


MoDF.L  Bill  of  Ladlvo. 

Shipped  in  good  order  and  condition  by  A.  B.  on  board  th« 
ship  X.,  whereof  is  master  for  this  present  voyage  C.  L).,  n(jw  lying 
in  tlie  port  of  Y.  and  bound  for  Z. 

being  marked  and  numbered  as  per  margin,  to  be  delivered  on 
production  of  this  bill  of  lading,  subject  to  the  exceptions  and 
conditions  hereinafter  mentioned,  in  the  like  good  order  and  con- 
dition, when  the  shipowner's  responsibility  shall  cease,  at  the  afore- 
said port  of  Z.,  or  so  near  thereto  as  she  may  safely  get,  unto  E.  F. 
or  to  his  assigns,  on  his  or  their  paying  freight  for  the  said  goods 
at  the  rate  of 

Average  as  accustomed. 
1'lio  following  are  the  exceptions  and  conditions  above  referred 
to:— 

AVeight,  measure,  quality,  contents  and  value  unknown.  The 
shipowner  not  to  be  i*esponsible  for  reasonable  wear  and  tear  of 
packages  or  goods;  nor  for  leakage,  breakage,  heat,  or  decay  ;  nor 
for  loss  or  damage  arising  from  the  act  of  God,  the  Queen's  enemies, 
pirates,  robbers  by  land  or  sea,  restraint  of  princes,  rulers  or  people, 
act,  neglect  or  default  of  the  master  or  crew  in  navigating  the  vessel, 
tire,  explosion,  nor  for  any  dangers  or  accidents  of  the  seas  and 
rivers. 

In  witness  whereof  the  master  of  the  said  ship  has  signed  two  bills 
of  lading  exclusive  of  his  own  copy,  all  of  this  tenor  and  date,  one 
of  which  being  accomplished  the  others  to  stand  void. 

Datea  at  Y.  188  . 

(Signed)     C.  I). 

The  President  then  called  upon  Mi{.  UkhaiU)  Lownuks  to  read 
a  paper  he  had  preparetl 

z  2 


340  MARITIME   LEGISLATION. 

On  a  Common  Form  of  Bill  of  Lading. 

Uniformity  in  the  law  of  Affreightment,  as  amongst  the  mari- 
time countries  of  Europe  and  A^merica,  is  desirable,  not  merely  as 
simplifyino-  the  relative  conditions  under  which  the  shipowners  of 
different  countries  are  to  compete  together  in  the  carrying  trade, 
but  still  more,  perhaps,  because  the  ship  of  any  one  country  is 
continually  placed  under  the  influence  of  the  laws  of  some  other 
country,  so  that  the  English  shipowner,  for  example,  has  a  direct 
personal  interest  in  the  French,  German,  and  American,  and  every 
other  law  of  Affreightment ;  his  ship  seeking  for  employment  in, 
or  being  obliged  to  visit,  sometimes  in  the  ordinary  course  of  navi- 
gation, sometimes  as  the  result  of  accident  or  sea  peril,  the  porta 
of  every  country  in  the  world. 

It  has  been  pointed  out  by  M.  de  Courcy,  in  his  admirable 
pamphlet  recently  published,  '  La  responsabilite  des  proprietaires 
de  navires  en  Angleterre  et  en  France,'  that  courts  of  law  and 
legislative  bodies  have  been  the  most  tard}",  we  may  almost  say 
have  alone  been  tardy,  in  recognising  the  importance  of  inter- 
national rules,  or,  to  speak  more  exactly,  of  rules  common  to 
several,  or,  if  possible,  to  all  nations,  in  matters  of  maritime 
commerce.  It  is  not  Governments  that  are  chargeable  with  this 
reproach.  There  exist  treaties  of  commerce,  postal  conventions, 
international  rules  for  the  prevention  of  collisions,  international 
conferences, '  on  a  great  number  of  questions  of  science,  of  hygiene, 
and  of  political  economy.'  Nor  can  private  individuals,  men 
engaged  in  commerce  or  connected  with  it  in  this  or  that  practical 
relation,  be  charged  with  this  reproach.  There  is,  I  venture  to 
say,  no  Chamber  of  Commerce  in  England,  or  any  other  country, 
which  is  not  more  or  less  in  correspondence  with  those  of  other 
countries,  on  subjects  bearing  on  some  branch  or  other  of  this 
large  topic — the  unification  of  mercantile  law.  Indeed,  the  very 
existence  of  this  society  of  ours  bears  witness  to  the  common 
impulse.  F>y  a  strange  contrast,  says  M.  de  Courcy,  nothing,  or 
ii(;xt  to  iK'lliiiig,  of  the  kind  is  found  in  tlio  Sjihci-o  of  internal 
legislation.  J<]ach  country  is  conservative  of  ils  old  laws,  or  re- 
form;-- thr-m   slowlv,  without  taking   concert   with   its   neighbours. 


INTERNATIONAL   LAW   OF   AFFREIGIITxMENT.  341 

and  the  consequence  is  that  reforms,  made  in  opposite  directions, 
frequently  have  the  effect  of  widening  the  differences  which  existed 
before.  '  I  am  convinced,'  says  M.  de  Courcy,  '  tliat  in  the  1  oth 
century  the  feudal  law  of  France  more  resembled  that  of  England 
than  the  civil  institutions  of  the  two  countries  resemble  one 
another  at  the  present  day.' 

Though  tardy  in  their  movements,  however,  courts  of  law  and 
legislative  bodies  are  to  a  certain  extent  amenable  to  influences 
from  without ;  and  an  opinion  widely  spread  and  strongly  felt 
amongst  mercantile  men  is  sure,  sooner  or  later,  to  force  its  way 
into  legislation.  What  is  taking  place  with  regard  to  the  law  of 
General  Average,  in  the  direction  of  unification  through  the 
medium  of  our  York- Antwerp  Rules,  must  serve  for  encourage- 
ment to  us  in  this  more  ambitious  and  more  difficult  task  of 
unification  of  the  law  of  Affreightment. 

Hitherto  our  efforts  in  this  direction  have  been  what  we  may 
call  empirical.  We  have  taken  one  striking  example  of  the  evils 
resulting  from  the  divergency  of  laws — the  subject  of  2>ro  ratd 
freight — and  have  endeavoured  to  establish  uniformity  with  regard 
to  that  one  point.  Something  has  already  been  done  here  in  the 
way  of  reform — witness  the  new  Belgian  Code,  in  which  the  rule 
on  this  head  has  been  altered,  and  assimilated  to  that  which 
prevails  in  England,  and  which  was  recommended  for  general 
adoption  by  this  Association.  Another  empirical  i-eform,  if  I  may 
call  it  so — I  mean  a  reform  of  detail,  aiming  at  a  conventional 
jmiformity,  in  a  matter  which  hardly  admits  of  being  reduced  to  a 
principle — has  recently  been  recommended  to  our  notice  by  the 
well-known  name  of  M.  de  Courcy,  namely,  a  uniform  rule  as  to 
the  limitation  in  amount  of  a  shipowner's  responsibility  for  the 
faults  of  his  servants.  To-day  we  are  to  consider  another  aspect 
lift  lie  subject,  a  proposal  which  is  not  empirical,  which  does  not 
aim  at  dealing  with  this  or  that  symptom  of  the  malady,  but  would 
strike  at  the  root;  that  is  to  say,  a  proposal  to  establish  uniformity 
in  the  law  of  Affreightment  by  the  adoi)tion  of  a  common  form  of 
bill  of  lading,  in  which  the  principal  conditions  of  an  international 
law  shall  be  embodied  in  express  terms. 

This.  I  ackuowledw.  is  a  bold   undertakiiiijr.  ami  one  that   we 


342  MARITIME    LEGISLATIOX. 

caunot  expect  to  carry  to  its  perfection  in  a  single  session.  I  tlo 
not  propose,  in  this  paper,  to  go  so  far  as  even  to  lay  before  yon 
the  complete  formula  of  the  proposed  bill  of  lading.  I  desire  only 
to  offer  some  general  observations,  mainly  for  the  purpose  of  elicit- 
ing opinions  from  my  present  hearers,  as  to  the  utility  of  such  a 
course,  and  as  to  the  principles  on  which  the  proposed  international 
bill  of  lading  should  be  drawn. 

In  the  first  place,  then,  it  will  probably  be  agreed  on  all  hands 
that  the  true  reason  why  there  are  these  divergencies  of  laws  on 
the  subject  of  the  contract  of  Affreightment  is,  not  any  difference 
in  the  principles  or  rules  of  construction  adopted  by  the  legislatures 
or  courts  of  the  different  countries  for  interpreting  the  contract — 
not  this,  or  this  at  most  in  a  very  minor  degree — but  the  loose 
and  imperfect  manner  in  which  the  intentions  of  the  contracting 
parties  are  set  forth  on  the  face  of  the  instrument  of  contract  itself. 
It  is  because  neither  bill  of  lading  nor  charter-party  is  sufficiently 
explicit — because  the  instrument  is  wholly  silent  where  it  ought 
to  speak,  or  speaks  vaguely  where  it  ought  to  be  precise ;  it  is  for 
this  reason  mainly  that  this  instrument  has  in  different  countries 
received  a  different  interpretation.  Now  for  this  mercantile  men 
have  the  remedy  in  their  own  hands.  They  have  only  to  agree 
among.st  themselves  as  to  what  they  really  intend  and  wish,  and 
then  to  say  so  on  the  face  of  their  contract  in  words  which  contain 
no  ambiguity. 

I  will  take,  for  an  illustration  of  this,  the  one  point  which 
happens  to  have  forced  itself  principally  on  my  notice — the  phrase  in 
the  old  form  of  bill  of  lading, '  the  accidents  of  navigation  excepted.' 
The  hill  of  lading  is  a  receipt  for  the  goods,  an  acknowledgment  of 
their  being  in  good  condition  when  received,  and  an  undertaking 
to  deliver  them,  by  a  specific  route,  at  a  place  defined,  to  a  per.son 
named  or  to  be  named,  on  payment  of  a  stipulated  rate  of  freight. 
All  the  conditions  of  a  pro,<;pproiif<  voyage — conditions  comparatively 
simple — are  defined  with  exactitude  ;  but  as  for  what  is  to  be  done, 
what  are  to  be  the  respective  rights  of  the  contracting  parties,  in 
any  of  the  various  circumstances  which  may  lead  to  the  voyage  not 
being  absnhitr-ly  prosperous— a  case  uiifVirl unately  too  frequent — 
there  is  iirit  ;i  woid    in    the  <ir(liii;ir\   t'onn   of  crintract,  bevond  this 


INTKIlXATIoXAl,    I.AW    oF    AFFIM'.K  HI  IMK  NT.  1^4'. 

Vagno  e\]>r('ssi(m,  '  tlio  aooidents  of  navigation  e.voeptcd.  Now 
the  question  arises,  ulieilior  this  ought  to  lie,  or  whether  we  can 
devise  anv  iinproveiiient.  Is  it  not  the  fact  that  ahuost  all — that 
certainlv  the  most  iniixtrlant  amongst — the  divergencies  of  our 
different  laws  concerning  Allreightnient,  have  to  do  with  this  pas- 
sage in  the  hill  of  lading?  Jt'  we  could  only  express  ourselves  a 
little  more  distinctly — if  we  would  oidy  say  what  we  mean  l>y  this 
important  exception — should  we  not  have  made  a  considerable  step 
towards  uniformity  ?  This,  of  course,  is  on  the  supposition  that  we. 
all  mean,  or  can  be  brought  to  mean,  the  same  thing;  if  not,  our 
conferences  here  are  a  mere  wa  <te  of  time. 

The  clause  •  aeci(li>nts  of  navigation  exc(*})te(l,'  standing  in  the 
bill  of  hiding  where  it  does,  immediately  ibllowing  and  (jualitying 
the  undertaking  on  the  part  of  the  shipowner  to  deliver  the  goods 
at  their  deslinati<^n  in  the  like  g(t(Kl  order  as  when  shipped,  amounts 
to  no  more  than  the  negative  ]iro|-.osition  that,  in  the  event  of  such 
accidents,  the  shipowner  is  not  bound  to  do  an  impossibility. 
What  is  to  be  regarded  as  an  accident  of  navigation  ;  how  to  treat 
a  mishaji  which  is  due  conjointly  to  a  sea  peril  and  to  a  fault  or 
neglect  of  the  nuvster  or  seamt'u,  or  directly  to  one  and  remotely  to 
the  other;  whether  upon  the  occurring  of  an  accident,  the  con- 
tract is  to  be  regarded  as  annulled,  or  suspended,  or  whether  any 
or  what  new  relation  between  the  contracting  parties  is  there- 
n]ion  set  u]i ;  whether,  if  the  ship  be  disabled  by  such  accident,  so 
that  there  has  been  a  partial  performance  of  the  engagement  to 
carry,  the  shipowner  is  to  be  entitled  to  a  proportionate  part  of  his 
freight,  or  whether  he  is  at  liberty  to  earn  the  whole  by  sending 
on  the  g(X)ds  in  another  bottom,  or  whether  he  is  bound  to  do  so  if 
he  can  ;  whether  the  shipowner  shall  be  answerable  for  the  faults 
of  his  crew,  and  if  so,  whether  he  shall  be  answerable  to  an  un- 
limited extent;  wdiether,  in  case  of  sacrifice  made  for  the  sake  of 
all,  there  shall  ])e  a  contribution  as  (Jeneral  Average,  and  if  so  by 
what  law,  or  on  what  principles,  such  contribution  shall  \h'  regu- 
lated :  concerning  all  these  points,  and  others  like  them,  the  con- 
tract is  absolutely  silent. 

Now  it  is  interesting  and  inih  ed  ini]iiivtant  for  onr  present 
purpose,  to  consider  in  what  way  this  omitted  or  unwritten  part  of 


344  MAKiriME    LKUISLATIOX. 

the  contract  has  gradually  been  filled  up.  A  body  of  regulations 
on  the  subjects  here  indicated  has  in  the  course  of  time  been 
formed,  not  in  the  first  instance  by  the  municipal  laws  of  any 
one  country,  nor  of  several  countries,  but  by  the  usages  of  seafaring 
men  without  distinction  of  nationality.  The  oldest  written  records 
of  these  usages  were  drawn  up  at  places  where  there  were  great 
gatherings  of  the  ships  of  various  countries.  I  will  not  speak  of 
the  Roman  law,  or  of  the  Pandects — bodies  of  law  drawn  up  at 
a  time  when  the  whole  civilised  world  was,  at  least  nominally,  the 
subject  of  a  single  empire.  Even  these  codes  are  said  to  have 
been,  so  far  as  relates  to  maritime  affairs,  not  much  more  than  a 
resume  of  usages  already  existing  amongst  traders  by  sea.  We 
mny  confine  our  attention  to  what  took  place  in  comparatively 
modern  times,  when,  in  the  confusion  and  ignorance  which 
followed  the  disruption  of  the  Roman  Empire,  these  codes  were 
buried  in  obscurity,  and  commercial  or  at  least  maritime  legis- 
lation had  to  make  a  fresh  beginning.  Here  we  find,  according 
to  tradition,  the  laws  or  customs  of  Oleron — the  oldest  modern 
written  sea-law — drawn  up  at  some  gathering  of  merchant  ships 
off  the  island  of  Oleron  in  the  period  of  the  Crusades.  Next  in 
anticpiity.  perhaps,  to  this  may  be  placed  the  Ordinances  of  Wisby  ; 
A\'isby,  in  the  Baltic,  being  at  that  time  a  mart,  or  rendezvous, 
frequented  by  the  ships  of  all  nations.  There  was  nothing  muni- 
cipal, nothing  which  could  l)c  said  to  belong  to  one  country  rather 
tJian  another,  about  either  of  these  collections  of  maritime  usages  ; 
nor  was  there  anything  municipal  or  local  in  the  authority  accorded 
to  tlicin.  'flx'y  were  regarded,  all  over  Europe,  as  declarations  of 
the  coiiiiiicn  law  of  the  sea  ;  they  contained  the  authorised  expres- 
sion of  the  me.'ininir  which  merchants  and  mariners  attach  to  this 
unwritten  ]")ortion  of  their  contnictof  Affreightment.  Munici[)al 
law  on  this  sn Inject  came  hit  'r.  The  differences  in  the  laws  of 
ililfereiit  countries  im  lliis  sulijecl  jlius  appear  to  have  had  tlieir 
origin,  not  in  any  diffeicnce  eiilier  in  I  lie  nature  of  the  contract, 
or  of  the  understanding  of  merclianls  or  seafaring  men  as  to  what 
they  themselves  intended  by  il,  but  merely  in  the  circumstance 
that  this  nndei'standinL''  had  ia'\er  Itecn  sullicieiitly  reduced  to 
writing,  an  I  iia'l,  in  thi'  piMccss  oftime,  come  lo  be  inl  ei'])rete(l  by 


INTERNATIONAL    LAW    OF   AFFREIGHTMENT.  345 

lawyers  in  different  places,  and,  naturally  enough,  in  different  senses. 
If,  therefore,  it  should  now  happen  that  merchants  and  shipowners, 
awakening  to  a  sense  of  the  inconveniences  resulting  from  these 
differences,  should  seek  to  remedy  them,  by  coming  to  an  under- 
standing as  to  what  the  common  law  of  the  sea,  concerning 
Affreightment,  ought  to  be,  and  should  agree  on  a  form  of  words 
completing  that  which  heretofore  had  been  unwritten  in  the  con- 
tract, there  will  in  this  be  nothing  revolutionary,  but  merely  the 
natural  development  of  the  original  contract  itself.  I  do  not  for  a 
moment  deny  that  the  difficulties  in  the  way  of  coming  to  such  an 
understanding  are  considerable. 

One  great  difficulty — perhaps  the  principal  one — results  from 
the  change  in  the  character  of  sea-traffic  resulting  from  the  intro- 
duction of  steam.  It  seems  probable,  if  not  certain,  that  before 
long  there  will  be  no  important  traffic  by  sea  except  in  steel 
or  iron  steamers.  Concurrently  with  this  change,  there  has  been 
growing  up  in  the  minds  of  the  owners  of  these  steamships  a  con- 
viction that  there  must  be  one  radical  change  in  the  old  common 
law  of  the  sea ;  that  is  to  say,  that  the  shipowner  can  no  longer 
undertake  to  be  answerable  for  the  faults  or  neglects  of  the  master 
or  crew.  It  is  enough,  they  think,  if  the  shipowner  engages  to  do 
that  which  a  man  can  do — that  he  will  build  a  ship  fit  for  her 
work,  and  keep  her  fit,  and  will  man  her  with  a  crew  sufficient  in 
number,  and  competent  as  to  quality,  so  far  as  competency  can  be 
ascertained  beforehand,  and  with  a  master  and  officers  who  have 
obtained  the  certificates  of  competency  required  by  law.  To 
undertake  that  these  men  should  always  do  their  duty,  and  in  the 
course  of  a  long  voyage  shall  never  once  be  guilty  of  a  neglect,  or 
mistake,  that  shall  have  a  mischievous  result,  involves  a  liability 
which  these  owners  of  steamships  do  not  care  to  undertake.  I 
will  not  stay  to  discuss  the  question  whether  they  are  right  or 
wrong,  wise  or  unwise,  in  holding  this  conviction.  It  is  a  fact 
which  we  must  not  ignore,  that  the  great  majority  do  hold  it  ;  and 
that  at  present  they  have  the  power,  and  exercise  it  most 
effectually,  of  giving  effect  to  this  conviction  by  means  of  clauses 
in  their  bills  of  lading.  Though  there  are  gi*eat  varieties  in  the.se 
clauses,  though  souie  are  more  comprehensive  in  their  exclusions 


:U(i  MAIMTI.MK    f.K(;rSLATl()X. 

tlian  others,  this  ruliuo:  idea  is  in  all  of  thein  ;  the  owner  refuses 
to  be  held  liable  towards  the  shipper  or  owner  of  the  cargo  for  tlie 
faults  of  his  crew. 

Xosv,  so  long  as  the  owners  of  steamships,  speaking  of  them  as 
a  body,  hold  this  conviction  so  strongly  as  to  nnite  in  refusing  to 
carry  merchandise  on  any  other  terms,  it  cannot  be  denied  that 
they  are  acting  within  their  rights.  No  one  is  bound  to  build  a 
steamer,  or,  having  built  it,  to  allow  some  one  else  to  send  goods 
in  her  on  conditions  which  he  himself  does  not  like.  And  there 
are  some  good  reasons  for  thinking  that  the  owners  of  steamships 
are  likely  to  persist  in  this  view  of  the  subject.  In  fact,  it  is  a 
view  which  springs  almost  inevitably  from  the  nature  of  steam 
navigation.  It  is  no  exaggeration  to  say  that,  if  not  all,  certainly 
the  great  majority  of  accidents  to  steamers  are  traceable  to  the 
fault  of  some  seaman  or  engineer.  A  well-built  steamer  is  ]x>weiful 
to  resist  the  adverse  forces  of  nature  ;  she  hardly  can  s]iring  a  leak 
in  any  gale,  and  her  engines  will  keep  her  off  a  lee-shore  ;  but  she 
is  at  the  mercy  of  her  own  servants  ;  a  careless  engineer  or  stoker 
neglecting  to  keep  up  water  in  the  boilers  may  destroy  her  by  an 
e.vplosion  ;  the  rapid  ]iace  and  the  frequent  entering  of  harboui-s 
greatly  increase  the  risk  of  stranding  and  collision,  each  mostly 
traceable  to  a  sailor's  fault. 

Here,  then,  is  the  state  of  things  we  have  to  deal  with,  a  state 
of  things  curiously  complicated,  unsatisf^ictory,  and  not  likely  to 
last  without  some  change.  There  is  at  present  no  form  of  bill  of 
lading  common  to  steamships  ;  the  old  form,  still  used  for  sailing 
ships,  is  inadequate  even  for  these,  since  it  has  been  interpreted  in 
different  ways  in  different  countries;  and  the  form  for  sailing-ships 
on  the  one  hand,  and  the  various  forms  for  steamships  on  the  other, 
go  on  different  principles  in  a  matter  of  the  most  everyday  occur- 
rence and  most  vital  importance.  It  is  obvious,  thei-efore.  thai 
some  change,  and  perhaps  a  sweeping  one.  has  become  necessai'v. 

W^hat  that  change  shouhl  l)e  is  a  maltt'r  as  to  which  we  nnist 
speak  less  confidently.  Some  men  doubt — and  I  cannot  say  that 
the  doubt  is  unreasonable  whefhei-  we  are  yet  ripe  for  a  change  ; 
wild  lier  t  he  transition  from  (lie  sailing  sliip  to  the  steamer,  and 
perliap    fiMMi  tile  |)n\ale  slM|io\\iier  to  tlie  e'ini|ianv.  must  not   lli-t 


INTKKNATIOXAI.    LAW    OF   AFFltEIf JnT.Mi:XT.  847 

complete  itself,  or  at  least  reach  some  kind  oi'aleveLstaiHling-grouml, 
before  the  ]-)ennanent  conditions  of  the  bargain  between  carrier  and 
shipper,  iiiulcr  this  new  state  of  commerce  l;y  sea,  can  be  adjusted. 
Bnt  tliough  this  be  so,  it  by  no  means  follows  that  it  would  be  pre- 
mature to  discuss,  and  by  discussion  lay  the  foundations  of,  the  bill 
of  lading  of  the  age  of  steam.  This  bill  of  lading,  which  shall  ex- 
press the  standing  conditions  of  the  contract,  will  not  certainly  be 
invented  all  at  once,  nor  yet  adopted  by  acclamation  :  a  period  of 
gestation  must  precede  it;  and  it  is  this  preliminary  work  to  which 
our  attention  is  now  invited. 

In  the  first  place,  then,  so  far  as  regards  the  lial)i]ity  of  the 
shipowner  for  the  acts  of  his  servants,  I  cannot  think  that  there 
should  be  a  permanently  different  rule  for  the  sailing-ship  and 
the  steamer.  If  sailing-ships  continue  to  exist  at  all,  these,  as  the 
less  important,  will  naturally  conform  themselves  eventually  to  the 
form  of  contract  adopted  for  steam.  I  do  not  here  speak  of  the 
temporary  question  of  polic}',  whether  or  not  it  may  be  to  the 
advantage  of  the  owners  of  sailing-ships,  in  their  struggle  for 
existence  against  the  rising  preponderance  of  steam,  to  hold  out 
to  shippers  the  temptation  of  more  favourable  terms.  Whether 
this  will  do  them  any  good  is  a  matter  of  speculation,  interesting, 
no  doubt,  to  those  who  own  sailing-ships,  but  of  no  permanent  im- 
portance when  regarded  from  the  point  of  view  of  this  Association 
as  a  question  of  maritime  legislation. 

Turning,  then,  to  the  form  of  bill  of  lading  for  steamships,  the 
question  which  first  presents  itself  is  this  :  Is  it  wise  or  desirable 
that  the  owners  of  steamships  should  exempt  themselves  from 
responsibility  for  all  the  faults  or  neglects  of  their  servants,  or 
only  for  such  losses  as,  though  remotely  brought  about  by  such 
faults  or  neglects,  are  yet  directly  caused  by  the  accidents  of 
navigation  ?  There  is  a  broad  distinction  between  the  two.  At 
present,  most  if  not  all  the  forms  of  steamship  bills  of  lading  draw 
no  distinction.  Most  of  them  contain  clauses  which  exempt  the 
shipowner  from  responsibility  towards  the  shipper,  not  merely  for 
losses  resulting  from  a  collision  or  stranding,  or  accident  of  a  like 
nature,  brought  about  by  the  improper  conduct  of  the  crew,  bnt 
also  for  damage  through  improper  stowage,  or  careless  delivery  of 


348  MARITDJE  LEGISLATION. 

goods  to  the  wrong  consignee,  and,  in  a  word,  for  every  kind  of 
detriment  suffered  by  the  owner  of  the  goods  through  the  improper 
conduct  of  the  shipowner's  servants.  The  question  is,  whether 
this  is  not  going  too  far. 

Here  again  I  may  exclude  from  our  consideration  that  which 
I  may  call  a  temporary  question  of  policy,  arising  under  particular 
circumstances.  Some  owners  of  lines  of  steamships,  having  a 
practical  monopoly  of  a  particular  trade,  and  therefore  a  powerto 
dictate  their  own  terms,  may  conceive  it  to  be  to  their  advantage, 
so  long  as  they  are  thus  masters  of  the  situation,  to  concede  to 
the  shippers  as  little  as  possible.  Men  in  this  position  may  even 
resent,  as  an  impertinence,  what  they  may  describe  as  an  attempt, 
on  the  part  of  persons  outside  their  trade,  to  dictate  to  them  the 
terms  on  which  they  shall  conduct  their  own  business.  With  all 
this  we  have  nothing  to  do.  We  are  to  consider  the  question  on 
broader  grounds.  Our  question  is,  whether  it  is  not  to  the  advan- 
tage of  commerce  in  general,  and  therefore  in  the  long  run  to  the 
advantage  even  of  the  shipowners  placed  in  the  enviable  condition 
I  have  described,  that  there  should  be  one  general  form  of  contract 
for  the  carriage  of  goods  in  steamships,  subject  of  course  to  modi- 
fication in  exceptional  cases,  but  still  constituting  a  standard, 
which  can  be  recognised  and  cnrried  out  in  the  legislation  of  all 
countries.  Such  general  form,  in  order  to  be  permanently  accepted, 
must  be  satisfactory  to  both  parties  concerned,  and,  that  it  may  be 
so,  must  be  reasonable. 

Now  it  has  for  centuries  been  a  sort  of  maxim,  or  fundamental 
principle  in  maritime  commerce,  that  between  the  shipowner  and 
the  underwriter  the  goods-owner  ought  to  be  k('j)t  harmless  against 
all  lo.sses  except  those  of  the  market.  WHien  once  the  goods  have 
been  put  on  board,  properly  packed  so  as  to  be  fit  for  carriage, 
and  vvhen  they  have  been  fully  insured  against  all  risks,  the  owiiei- 
of  lliem  ought,  by  one  contract  or  the  other,  to  feel  secure.  The 
rule  has  been  that  the  shipowner  undertakes  to  deliver  them, 
accidents  of  navigation  excepted  ;  and  the  accidents  of  navigation 
are  guaranteed  by  tlic  insurer.  ]t  is  not  to  be  expected  that  anew 
form  of  contract ,  wliieli  shall  dest  i-oy  the  entirety  of  this  security, 
will  be  |)eniiaiieiit  Iv  sat  isfaet()i'\'  to  the  shi])]»ei's  of  cargo.        Il   may 


INTEllXATIONAL   LAW    OF    AFFREIGHTMENT.  340 

for  a  time  be  submitted  to  from  a  necessity  arising  from  monopoly 
or  a  trades-union  amongst  steamship  owners,  but  the  submission 
will  be  reluctant ;  any  steamship  that  should  offer  better  terms  in 
this  respect  would  at  once  gain  a  great  advantage  over  her  com- 
petitors ;  you  would  not  have  a  state  of  things  that  could  be  regarded 
as  satisfactory  or  stable. 

On  the  other  side,  looking  on  the  question  from  tlie  sliipowner's 
point    of  view,   the  reasons  which  originally  led    the  owners  of 
steamships  to  disclaim  liability  for  those  misdoings  of  their  ser- 
vants whicli  relate  to  the  stowage  and  delivery  of  the  merchandise, 
and  matters  of  that  kind,  are  such  as  belong,  we  may  say,  to  the 
infancy  of  steam  navigation,  are  already  beginning  to  lose  much  of 
their  force  and  are  likely  to  lose  in  time  ahnost  if  not  all  force. 
Those  reasons  may  be  reduced  to  one  principal  head — the  peremp- 
tory necessity,  for  steamers,  of  despatch.     Practical  men  know  veiy 
well  that,  in  the  early  days  of  ocean  steaming,  this  necessity  for 
despatch  led  to  a  great  deal  of  hurry  and  confusion  in  the  loading 
and    discharging  of  steamships.     The  old  deliberate  ways  which 
served  for  sailing-ships  had  to  be  abandoned.     The  art  of  method- 
ising haste,  of  doing  the  work  at  once  quickly  and  well,  was  not 
acquired  all  at  once.     It  has  been  necessary  to  learn  that  art ;  and 
it  may  now  certainly  be  said  that  great  progress  has  been  made  in 
the  learning  of  it.     But  in  the  early  stages  of  this  learning,  when 
it  was  strongly  felt  that  despatch  was  essential,  while  it  was  not 
yet  seen  that  despatch  was  not  incompatible  with  strict  precaution 
against  error,  the  first  and  easiest  way  of  proceeding  naturally  seemed 
to  be,  to  shake  off  the  responsibility  for  careless  loading  or  careless 
discharging.     This  crude  device  is  not  now  nearly  so  much  needed 
as  it  was  at  first ;  and  the  time  is  certainly  coming,  if  indeed  it  has 
not  come,  when  the  owners  of  steamships  may  safely  resume  the  old 
wholesome  check  upon  such  carelessness  which  is  afforded  by  their 
taking  the  responsibility  for  it  on  their  own  shoulders. 

Now  let  us  turn  for  a  moment  to  the  position  of  a  party  indi- 
rectly, indeed,  but  intimately  connected  with  the  contract — the 
underwriter.  There  are,  I  think,  reasons  for  believing  that  under- 
writers as  a  body,  while  it  would  be  scarcely  possible  to  induce 
them  to  take  upon  themselves  risks  so  entirely  strange  to  tliem,  of  a 


350  MAKITIME   LEGISLATION. 

nature  so  different  from  unytliing  they  have  as  yet  had  to  deal  with, 
as  the  risk  of  bad  stowage  or  of  improper  delivery,  yet  would  make 
no  great  difficulty  in  adapting  themselves  to  a  contract  under  which 
thev  should  merely  be  asked  to  make  good  losses  resulting  from  the 
})erils  ordinarily  insured  against,  just  as  they  do  now,  but  without 
having,  as  in  certain  eases  tliey  have  now,  a  recourse  against  the 
shipowner,  wlien  the  peril  or  loss  can  be  traced  to  the  fault  of  his 
servants.  In  truth,  such  a  change  would  only  be  a  return  to  the 
state  of  things  which  in  England,  practically,  existed  up  to  about 
the  year  ]864<  or  1866.  It  has  long  been  the  rule  of  law  in  Eng- 
land, as  I  dare  say  in  all  other  countries,  that,  as  between  insurer 
and  assured,  the  former  is  liable,  under  the  old  maxim  of  law, '  Causa 
proxima,  non  remota,  spectatur,'  for  losses  directly  caused  by  a  peril 
insured  against,  notwithstanding  that  the  loss  may  have  been  re- 
motely brought  about  by  the  fault  or  neglect  of  someone  other  than 
the  assured  himself.  If  the  shipowner's  servant  negligently  sets 
the  ship  on  fire,  or  runs  her  aground,  or  into  collision  with  some 
othei'  ship,  the  underwriter  must  bear  the  loss.  It  was  for  a  long- 
time generally  supposed,  I  do  not  say  by  lawyers,  but  certainly 
by  mercantile  men,  that  the  same  rule  applied  to  the  contract  of 
Atfreightment,  and  this  supposition  was  for  a  great  length  of  time 
generally  acted  on  in  practice.  The  clause  '  accidents  of  navigation 
excepted  '  was  supposed  to  free  the  shipowner,  as  between  himself 
and  the  owners  of  the  cargo,  from  all  liability  for  losses  directly  re- 
sulting from  such  accidents,  so  as  to  render  unnecessary  any  inquiry 
into  the  conduct  of  his  servants,  the  master  and  crew.  In  those 
days  Board  of  Trade  incpiiries  into  the  causes  of  maritime  disasters 
did  not  exist.  I  well  remember  the  shock  to  our  preconceived 
notions  which  was  given,  in  the  years  I  have  named,  by  two  deci- 
sions of  the  English  courts,  which  followed  one  another  in  rapid 
succession,  both  against  the  same  defendant.  One  of  these  cases 
was  called  Lloyd,  1  he  other  (Jrill,  against  the  Screw  Collier  Com- 
pany. They  laid  down  the  law  to  be  that  there  was  in  this  matter 
a  fundamental  difference  of  ])rinci])le  between  the  contract  of  in- 
surance and  lli;il  ol"  A  Hrfiu'lit  mcul  ;  lluit,  in  fact,  the  'accidents  of" 
navigation  in  tlic  bill  <>i'  hnliiig  li;id  not  so  wide  a  iiK^aning  as  the 
perils  of  the  seas."  A:c..  in  the  jiolicy  of  insurance.     1'lie  jiei'ils  whicli 


IXTKKXATroXAL    LAW    OF   AFFKKKillTMKNT.  .'{.",1 

the  uiidi'i-writi'i-  tiikc.'S  upoii  himself,  it  Jippetirs,  include  looses  ra- 
inolely  brouglit  about  Ijy  the  fault  of  the  servants  of  the  shipo\vn(M' ; 
the  '  accidents  of  navigation,'  from  which  tlie  shipowner  exempts 
lu'mself  under  an  ordinary  l7ill  of  hiding",  do  not  include  such  losses. 
Tiie  result  is  that  there  is  a  large  class  of  losses,  in  respect  of  which 
the  shijiper  or  owner  of  cargo  has  a  double  indenniity  ;  Ik.'  may.  if 
he  ])leases,  claim  from  the  shi])o\vner  (himages  for  loss  resulting 
from  the  fault  of  a  seaman,  or  he  may  claim  that  loss  from  his  own 
underwriter,  as  a  loss  directly  caused  by  sea  peril.  W  he  takes  the 
latter  course,  his  underwriter  on  payment  succcimIs  to  his  rights. 
and  may  himself  sue  the  shipowner.  Now  I  shall  ask  practical 
men  to  confirm  what  I  am  about  to  say  from  their  own  experience; 
but  so  far  as  1  have  had  opportunities  for  observing,  I  think  I  can 
say  with  confidence  that  underwriters  generally  do  not  attach  much 
value  to  the  right  they  have,  after  paying  a  loss  of  cargo,  to  recover 
it  back  from  the  shipowner  on  the  ground  that  the  loss  has  arisen 
through  some  neglect  on  the  part  of  liis  servants.  AVhether  it  be 
that  the  attempt  to  enforce  such  a  right  almost  always  leads  to  liti- 
gation, or  whether  it  be  due  to  a  feeling  that  the  frequent  enforcing 
of  such  claims  would  drive  shipowners  to  a  change  in  the  form  of 
their  contracts ;  whatever  be  the  reason,  the  fact  certainly  is  that 
such  claims  are  very  rarely  made.  I  have  myself  known  many  cases 
in  which  such  a  claim  might  have  been  made,  Avith  very  fair  hopes 
of  success,  but  where  it  has  not  been  attempted,  or  even  seriously 
thought  of. 

For  these  reasons  I  am  inclined  to  believe  that  if  the  owners  of 
steamships  would  limit  their  demand  in  the  manner  I  have  sug- 
gested— if  they  would  agree  to  take  upon  themselves  all  liability 
except  for  the  accidents  of  navigation,  on  condition  that  for  the 
results  of  those  accidents  they  should  be  exempted  from  liability, 
even  though  the  accident  itself  were  brought  about  by  the  fault  of 
some  one  in  their  employ,  all  the  difficulties  and  anomalies  of  the 
present  state  of  things  would  be  removed ;  and  that  this  change, 
whilst  highly  acceptable  to  the  owners  of  merchandise,  would  en- 
counter little  or  no  resistance  from  underwriters,  and  would  in  the 
long  run  be  decidedly  beneticial  to  the  shipowners  themselves. 

1  have  dealt,  perhaps,  at  too  great  length  on  this  point,  because 


352  MARITIME    LEGISLATION. 

of  its  extreme  importance  ;  but  before  I  leave  it,  there  is  just  one 
objection  which  I  wish  to  anticipate. 

It  may  perhaps  be  urged  that  a  change  such  as  that  proposed, 
if  it  is  likely  to  do  so  little  hurt  to  insurer  or  shipowner,  is  not 
likely  to  do  much  good  to  the  owner  of  cargo.  In  fact,  it  may  be 
said  there  exists  at  this  moment  no  violent  dissatisfaction  with  the 
present  state  of  things.  Anomalous  and  indefensible  in  theory 
it  may  be,  yet  it  has  not  worked  so  very  badly.  The  owners  of 
steamships  for  the  most  part  use  their  clauses  rather  as  a  safe- 
guard against  unreasonable  claims,  than  as  a  ground  for  resist- 
incr  such  claims,  whether  for  bad  stowage  or  for  non-delivery  of 
goods,  as  they  believe  to  be  well  founded ;  in  other  words,  they 
do  not  really  avail  themselves  to  the  full  extent  of  the  power 
which  these  clauses  give  them.  On  the  other  hand,  as  regards 
sailing-ships,  the  insurers  of  cargo  do  not  enforce,  to  anything  like 
the  full  extent,  the  terrible  liabilities  to  which  the  law  exposes  the 
shipowner.  They  use  their  power  as  a  menace,  put  in  force  only 
in  extreme  cases.  This  being  so,  why  disturb  a  state  of  things 
against  which  there  is  as  yet  no  great  outcry  ? 

To  this  the  answer  surely  should,  be  :  the  uncertainty,  both  to 
the  merchant  and  the  shipowner,  of  a  state  of  things  which  leaves 
either  to  the  clemency  or  forbearance  of  some  one  else,  is  in  itself 
a  great  evil ;  it  operates,  so  far  as  it  goes,  as  a  discouragement 
to  maritime  adventure  ;  and  if,  as  appears  to  be  the  case,  this 
uncertainty  and  this  discouragement  can  be  removed  by  adding  a 
few  more  words  to  the  printed  form  of  a  bill  of  lading,  there  is 
surely  no  valid  reason  why  the  alteration  should  not  be  made. 

I  would  suggest,  then,  for  steamers  and  for  sailing-ships,  some 
such  form  as  this  :  '  Owners  not  responsible  for  the  accidents  of 
navigation,  whether  occasioned  by  the  fault  or  neglect  of  those  in 
their  employ,  or  otherwise.' 

Having  now  occupied  your  time  more  than  enough,  I  propose 
only,  in  as  few  words  as  possible,  to  enumerate  one  or  two  other 
principal  changes  or  additional  clauses  which  occur  to  me  as 
desirable,  if  we  are  to  have  a  common  form  of  bill  of  lading  such 
as  may  serve  for  the  basis  of  ;m  international  law  of  Affreightment. 

Some  fuller  specification   ol'  ihe  accidents  of  na\-igation,  par- 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  353 

ticularly  in  the  case  of  steanishipg,  appears  to  me  desirable. 
'  Fire  '  should  be  mentioned  by  name.  The  bursting  of  boilers,  and 
the  breakage  of  screw-sliafts,  are  accidents,  from  the  effects  of  which 
the  shipowner  should  bo  protected,  notwithstanding  that  either  of 
these  occurrences  are  often  attributable  either  to  negligence  or  wear 
and  tear  on  some  previous  voyage,  which  might  legally  be  construed 
into  unseaworthiness  on  the  voyage  in  question.  These,  therefore, 
should  be  excepted  by  name.  Very  probably  other  accidents  of  a 
like  nature  may  be  suggested  in  the  course  of  our  discussions ; 
these,  however,  are  all  that  at  the  moment  occur  to  me.  It  must 
be  remembered,  that,  without  any  express  words,  when  goods  are 
shipped  in  a  steamer,  '  accidents  of  navigation '  cover  all  incidents 
of  steam  navigation,  except  such  as  result  from  unseaworthiness  or 
fault  of  the  shipowner's  servants. 

Power  to  tranship  the  goods,  even  without  necessity  arising 
from  sea-peril,  is  frequently  reserved  by  the  owners  of  steamships 
in  certain  trades.  That  is  a  matter  of  detail,  as  to  which  unifor- 
mity is  not  requisite  or  even  particularly  desirable.  But  when 
such  power  is  intended  to  be  reserved,  this  must  be  done  by  express 
words. 

Careful  provision  should  be  made,  by  an  express  clause,  for  the 
several  cases  in  which  the  voyage  is  necessarily  broken  off  in  the 
middle.  This  raises  the  whole  question  of  j>yo  rata  freight,  and 
the  proper  wording  of  a  clause  to  deal  with  it  will  require  much 
consideration.  Concerning  this,  I  do  not  at  present  propose  to  go 
further  than  to  suggest  that  the  framing  of  such  a  clause  might 
with  advantage  be  referred  to  a  special  committee.  The  basis  of 
it  I  take  to  be  that,  if  the  ship  is  disabled  from  carrying  the 
goods  to  their  destination,  the  shipowner  is  to  be  at  liberty  to  earn 
his  freight  by  sending  on  the  goods  at  his  own  expense  in  another 
bottom.  If  the  goods  are  by  sea-peril  rendered  unfit  to  be  carried 
all  the  way,  no  freight  is  to  be  due.  This  is  apparently  the  result 
of  our  delil)erations  thus  far.  I  may  point  out,  however,  that  the 
latter  of  these  two  rules  would  occasionally  lead  to  most  inequitable 
results.  A  cargo  of  coals,  for  example,  though  incapable  (e.g. 
from  being  wet  and  heated)  of  being  carried  all  the  way  to  its  des- 
tination, may  be  sold  at  the  intcrimdiati'  port  at  double  or  treble 

A  A 


354  MARITIME   LEGISLATION. 

its  original  cost;  and  it  certainly  appears  inequitable  that  this 
enhanced  value,  given  to  it  by  the  transit,  should  be  taken  by  the 
merchant  without  any  payment  of  freight  to  the  shipowner. 

Closely  connected  with  this  are  two  questions,  which  I  believe 
our  Association  have  already  discussed,  viz.  When  goods  are 
damaged  by  sea-peril,  so  as  to  be  rendered  less  valuable,  ought 
there  to  be  a  proportionate  reduction  in  the  freight  on  them  ? — a 
question  which  I  believe  we  answer  in  the  negative ;  and.  When 
goods  are  thus  damaged  to  such  an  extent  as  not  to  be  worth  so 
much  as  the  freight  on  them,  ought  the  deficit  to  be  reclaimable 
from  the  shipper? — which  also,  I  believe,  we  answer  in  the  negative. 
It  would  probably  be  advisable  that  both  these  conclusions  should 
be  expressed  on  the  face  of  our  bill  of  lading. 

On  the  complicated  subject  of  General  Average,  we  already 
know  how  to  secure  a  practical  unifonnity,  namely,  by  the  insertion 
of  the  York-Antwerp-Rule  clause.  It  would  be  still  better  if  we 
could  have  a  York-Antwerp  '  Code.'  The  time  has  come,  I  think, 
when  we  are  ripe  for  an  agi'eed  definition  of  the  principle  of 
General  Average.  Some  few  points  not  touched  on  by  the  York- 
Antwerp  Rules  ought  to  be  added.  The  rule  as  to  voluntary 
stranding,  which  was  somewhat  hastily  accepted  at  Antwei-p  almost 
Avithout  discussion,  needs  to  be  reconsidered.  As  it  stands,  it 
appears  to  me  almost  the  only  blemish  in  these  rules.  I  should 
like  to  see  a  more  rational  rule  of  practice  substituted  for  the  old 
deduction  of  one-third,  particularly  as  regards  iron  ships  and  repairs 
at  a  port  of  refuge  where  the  cost  greatly  exceeds  the  cost  in  the 
home  port.  Such  a  code  would  be  the  completion  of  the  work 
done  at  Antwerp — work  which  this  Association  may  look  back  to 
with  some  reasonable  pride. 

Here,  then,  is  the  outline — a  very  crude  and  imperfect  one — 
of  the  international  bill  of  lading  which  the  sp.ecial  committee 
invite  you  to  construct.  It  is  probable  that  at  our  present  meeting 
we  shall  not  get  further,  in  any  case,  than  the  appointment  of  a 
committee,  authorised  to  consult  with  the  accredited  representatives 
of  shipowners  and  merchants  in  the  several  countries,  and  to  frame 
ill.'  (Inifl  of  u  bill  of  lading,  to  be  brought  before  you  for  adoption, 
correction,  or  rejection,  as  the  case  may  be,  on  some  future  occasion. 


INTERNATIONAL   LAW  OF   AFFREIGHTMENT.  355 

The  appointment  of  such  a  committeo,  should  this  meet  with  your 
approval,  will  have  been  an  important  step  towards  the  object  we 
have  in  view. 

On  the  conclusion  of  the  reading  of  Mr.  Lowndes's  treatise,  Sir 
Travehs  Twiss  moved  the  following  resolution  :  '  That  the  execu- 
tive council  be  empowered  to  nominate  a  committee  to  report  at 
the  next  conference  upon  the  subject  of  Mr.  Richard  Lowndes's 
paper,  with  power  to  appoint  sub-committees,  and  directions  to 
print  and  circulate  the  said  paper.' 

I  seconded  this  motion. 

On  Thursday,  August  18,  1881,  the  conference  again  met,  when 
Mr.  II.  H.  Meier,  the  President,  who  was  in  the  chair,  read  out 
the  names  of  the  gentlemen  who  had  been  added  to  the  Committee 
on  the  International  Law  of  Affreiglitment,  namely  : — 

Theodore  Engels,  of  Antwerp. 
H.  H.  Meie;r,  of  Bremen. 
M.  De  Courcy,  of  Paris, 
Professor  Asser,  of  Amsterdam. 
Mr.  Axel  Wixge,  of  Christiania. 
Judge  C.  A.^Peabody,  of  New  York. 


On  the  reassembling  of  the  conference  on  Friday,  August  19, 
1881,  Sir  Travers  Twiss,  in  the  chair,  announced  that  Mr.  Richard 
Lowndes  had  kindly  promised  to  form  a  committee  in  Liverpool  on 
the  important  question  of  the  law  of  Bills  of  Lading,  and  moved 
that  ^Ir.  Richard  Lowndes,  of  Liverpool,  be  appointed  honorary 
secretary  of  the  local  committee  in  Liverpool  on  the  International 
Law  of  Bills  of  Lading,' with  directions  to  form  a  committee,  and 
to  report  to  the  executive  council  of  the  Association. 

In  supporting  this  motion,  Dr.  Syndicus  Marcus  said  that  it 
was  very  desirable  that  local  committees  should  be  formed  to  work 
up  any  subject  which  it  was  agreed  to  adopt  as  a  question  for  con- 
sideration.    The  motion  was  adopted. 

The  following  twelvemonths  were  utilised  to  ventilate 
the  subject  in   all   directions,  as  will  be  seen   from  the 


356  MARITIME   LEGISLATION. 

following  very  full  report  of  the  proceedings  of  the  As- 
sociation's tenth  conference  held  in  the  Town  Hall  of  the 
city  of  Liverpool  on  August  8,  1882,  under  the  presidency 
of  the  late  Lord  O'Hagan,  who,  as  will  be  recollected,  pre- 
sided at  the  Antwerp  Conference  of  1877,  where  the  York 
and  Antwerp  General  Average  Eules  were  promulgated. 

I  must  here  express  my  regret  that  the  attendance  of 
shorthand-writers  during  these  proceedings  had  not  been 
secured,  and  therefore  only  a  few  of  the  very  acute  argu- 
ments used  during  the  discussions  by  the  various  speakers 
have  been  recorded. 

The  proceedings  were  opened  by  Dr.  Chaeles  Stubbs, 
of  London,  honorary  secretary  of  the  Committee  on  an 
International  Law  of  AfTreightment  and  Bills  of  Lading, 
reading  the  following  report : — 

In  accordance  with  the  resolution  passed  at  the  Cologne  Con- 
feivnce  of  tliis  Association,  that  a  committee  should  be  nominated 
by  the  executive  council  to  consider  and  report  on  the  subject  of 
tlie  codification  of  international  law,  specially  with  regard  to  the 
law  of  Affreightment  and  Bills  of  Lading,  the  following  committee 
has  during  the  past  year  been  appointed : — 

Dk.  Wendt,  London,  Chairman. 

'Mil.  KiciiAKD  Lowndes,  Liverpool,  Beputij  Chairman. 

^\h.  Jacoh  Ahleks,  Hamburg. 

I^j{OFf:ssoR  AssEK,  Councillor  of  State,  Amsterdam. 

Mu.  H.  J.  Atkinson,  London  and  Hull. 

]\Ii<.  L.  li.  JJaily,  Liverpool. 

Mk.  T.  C.  Engels,  Chairman  of  the  ]5i'lgiaii  Lloyd,  Antwerp. 

Mr.  H.  W.  Gaih,  LiveqDool. 

Mu.  John  Clover,  London. 

Dr.  Ci'TSCiiow,  Jhmiburg. 

Col.  Hill,  C.B.,  President  of  the  Chamber  of  Shipping  of  the 

Liiitcd   Kingdom,  Cardiff. 
Mi;.  I'iiii.ii'  IIiksciifkli*.  lionddii. 


INTERNATIONAL   LAW  OF  AFFREIGHTMENT.  357 

Mr.  E.  Hogg,  Chairman  of  the  Association  of  Average  Adjusters, 
London. 

Mr.  T.  H.  Ismay,  Liverpool. 

Mr.  AV.  a.  Jevons,  LiveiiJool. 

Mr.  W.  H.  Jones,  Liverpool. 

Mr.  S.  Lowther,  Lelfast. 

Mr.  H.  H.  Meier,  Chairman  of  the  North  Cerman  Lloyd, 
Bremen. 

Mr.  Ole  MOller,  London. 

Dr.  W.  L.  p.  a.  Molengraaff,  Amsterdam. 

The  Hon.  Judge  Ch.  A.  Peabody,  New  York. 

Mr.  Jame.s  Poole,  Liverpool. 

Mr.  J.  H.  Powell,  London. 

Mr.  p.  H.  Ratiihone,  Liverpool. 

Dr.  Rahusen,  Amsterdam. 

Mr.  H.  REmHOLDj  Calcutta. 

Mr.  John  Riley,  London. 

Dr.  Sieveking,  President  of  the  Court  of  Appeal,  Hamburg. 

Mr.  Ulrich,  Secretary-General  of  the  International  Under- 
writers' Association,  Berlin. 

Dr.  Voigt,  Hamburg. 

Mr.  Axel  Winge,  Christiania ;  and 

Dr.  Charles  Stubbs,  London,  Hon.  Sec. 

It  has  been  considered  inexpedient,  if  not  impossible,  to  present 
a  reasoned  report,  signed  by  or  on  behalf  of  your  committee  so 
constituted,  on  the  subject  assigned  to  them.  I  have,  however, 
been  directed  to  prepare,  for  the  information  of  the  members  of 
the  Association  at  this  conference,  a  report  on  the  proceedings 
of  your  committee  since  the  last  conference,  and  the  result 
thereof. 

Communications  have  been  addressed  to  a  large  number  of 
Chambers  of  Commerce,  associations,  leading  merchants,  shipowners, 
lawyers,  and  others  in  England,  America,  and  the  continent  of 
Europe,  directing  their  attention  to  copies  of  the  papers  on  bills  of 
lading  laid  before  this  Association  last  year,  with  the  request  that 
they  would  form  local  committees  in  their  respective  towns,  discusfc 


858  MARITIME   LEGISLATION. 

the  subject,  aud  transmit  to  your  committee  tlieir  individual  or 
collective  opinions  on  the  same,  and,  if  possible,  come,  or  send 
representatives,  to  take  part  in  the  intended  deliberations  at  this 
conference.  In  response  to  the  request  of  your  committee,  local 
committees  have  been  formed  at  Liverpool,  Newcastle-on-Tyne, 
Hull,  Sunderland,  North  Shields,  .Hamburg,  Amsterdam  and 
Rotterdam,  Antwerp,  and  New  York. 

The  Liverjiool  committee,  a  large  and  influential  body  of  repre- 
sentatives of  Shipowners',  Merchants',  and  Underwriters'  Associa- 
tions and  Chambers  of  Commerce,  held  many  meetings,  and,  after 
much  discussion,  agreed  with  practical  unanimity  to  two  drafts  of 
a  common  form  of  bill  of  lading,  one  for  steam  vessels  and  one  for 
sailing  vessels,  subject,  however,  to  revision. 

These  drafts  have  also  been  considered  by  the  members  of  your 
committee,  and  widely  circulated  and  submitted  to  the  other  local 
committees,  with  a  view  of  obtaining  opinions  as  to  whether  they 
would  meet  the  views  of  the  various  mercantile  communities, 
without  or  with  any  alterations. 

The  letters,  accompanied  by  the  documents  referred  to,  have 
elicited  a  large  number  of  ans\yers,  together  with  some  reasone  1 
reports  from  the  local  committees.  The  general  opinion  appeared 
to  be  in  favour  of  the  Liverpool  drafts,  the  approval  expressed 
being,  however,  as  was  to  be  expected,  qualified,  some  of  the 
clauses  contained  therein  being  disapproved  of  in  some  instances 
and  new  clauses  suggested  in  others. 

The  reports  and  suggestions  referred  to  are  here  printed,  and 
may  be  seen  therefore  in  the  full  report, 

Mr.  RicnAHD  Lowndes,  President  of  the  Liverpool  Chamber  of 
Commerce,  as  deputy  chairman  of  this  committee  and  chairman  of 
the  Liverpool  committee,  then  introduced  the  discussion  on  this 
subject.  He  concluded  by  moving  the  adoption  of  the  report  of 
the  Liverpool  committee  introducing  the  draft  form  of  bill  of 
lading. 

'Jliis  report  was  as  follows  : — 

The  '  Association  for  the  Reform  and  Codification  of  the  Law 
of  Nations  '  luiviiig,  in  its  meeting  in  Cologne  last  year,  a])proved 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  359 

of  the  proposal  made  to  endeavour  to  establish  a  commoii  form  of 
bill  of  ladin<^,  so  framed  as  to  promote  uniformity  in  the  law  of 
Affreightment  throughout  the  mercantile  world ;  and  having  ap- 
pointed a  special  committee  to  organise  this  work  in  the  several 
countries  ;  an  invitation  was  issued,  under  the  sanction  of  the 
central  committee,  to  the  several  shipowning  and  mercantile 
associations  of  Liverpool,  to  send  two  representatives  from  each 
association  in  order  to  constitute  a  local  committee,  for  the  purpose 
of  taking  the  subject  into  consideration,  and,  if  possible,  framing  a 
bill  of  lading  adapted  to  the  end  here  proposed. 

In  response  to  this  invitation,  each  of  the  associations  sent 
two  representatives.  The  Shipowners'  Association  appointed  Mr. 
Donald  Kennedy  and  Mr.  John  llankin  ;  the  Steamship  Owners' 
Association  appointed  Mr.  James  Spence  and  Mr.  W.  H.  Wilson  ; 
the  Chamber  of  Commerce  appointed  Mr.  Richard  Lowndes  and 
Mr.  Henry  Coke ;  the  American  Chamber  of  Coinmerce  appointed 
Mr.  W.  D.  Heyne  and  Mr.  B.  F.  Babcock  ;  the  East  India  and  China 
Section  of  the  Chamber  of  Commerce  appointed  Mr.  Robert  Glad- 
stone and  Mr.  Magnus  Mowat ;  the  Iron  and  General  Metal  Trade 
Section  appointed  Mr.  Alexander  Sparrow  and  Mr.  George  Rae 
Anderson ;  the  Cotton  Section  appointed  Mr.  B.  F.  Babcock  and 
Mr.  Bancroft  Cooke ;  the  Underwriters'  Association  appointed  Mr. 
C.  B.  Vallance  and  Mr.  S.  Cross ;  and  the  Liverpool  Law  Society, 
who  were  asked  to  take  part  in  order  to  advise  the  committee  on 
points  of  law  and  to  assist  in  the  framing  of  clauses,  appointed 
Mr.  H.  W.  Collins  and  Mr.  A.  Bright.  These  gentlemen,  together 
with  the  following  members  of  the  central  committee,  who  took 
part  ex  officio— viz.  Mr.  L.  R.  Baily,  Mr.  H.  W.  Gair,  Mr.  T.  H. 
Ismay,  Mr.  W.  A.  Jevons,  Mr.  W.  H.  Jones,  Mr.  James  Poole, 
and  Mr.  P.  H.  Rathbone — constituted  the  Liverpool  Bill  of  Lading 
Committee. 

This  committee,  after  holding  seventeen  meetings,  now  closes 
its  proceedings,  at  all  events  until  after  the  approaching  annual 
meeting  of  the  Association  on  August  8  next,  with  the  followiug 
report : — 

The  committee  are  practically  unanimous  on  the  following 
points: — 


3G0  MAIJITIME   LEGISLATION. 

The  present  state  of  things,  under  wliich  almost  every  steam- 
ship company  has  a  form  of  bill  of  lading  of  its  own,  and  there  is 
uncertainty  as  to  the  effect  of  the  special  clauses  constantly  intro- 
duced, is  inconvenient  and  objectionable. 

There  is  no  sufficient  reason  why  the  liability  of  a  steamship 
owner  should  differ  from  that  of  the  owner  of  a  sailing-ship,  in 
such  matters  as  damage  resulting  from  improper  stowage,  or  as  to 
loss  occasioned  by  collision  or  other  accident  of  navigation,  brought 
about  through  some  fault  or  error  of  judgment  on  the  part  of  the 
master  or  crew. 

If  a  common  form  of  bill  of  lading  can  be  drawn  up,  such  as 
would  fairly  meet  the  reasonable  requirements  of  the  shipowner  on 
the  one  hand,  and  of  the  owners  and  insurers  of  the  cargo  on  the 
other,  its  general  adoption  would  be  a  great  convenience  to  mer- 
cantile men. 

Admitting  that  there  may  be  reasons  for  special  clauses  in 
particular  trades,  and  also  admitting  the  principle  of  freedom  of 
contract,  it  still  would  be  a  great  advantage  to  have  any  special 
clauses  printed  or  written  in  such  a  manner  as  to  be  easily  dis- 
tinguishable from  the  common  form  ;  as,  for  instance,  in  the  margin 
of  the  bill  of  lading,  and  not  in  the  body  of  it.  The  contracting 
parties  could  then  readily  direct  their  particular  attention  to  these 
special  clauses,  and  would  know  what  they  were  asked  to  agree  to. 

The  principle  of  the  common  form  of  bill  of  lading  should  be 
this  :  that  the  shipowner,  whether  by  steam  or  sailing  ship,  should 
be  liable  for  the  faults  of  his  servants  in  all  matters  relating,  to  the 
ordinary  course  of  the  voyage,  such  as  the  stowage  and  right 
delivery  of  the  cargo,  and  other  matters  of  this  kind ;  but,  on  the 
other  hand,  the  shipowner  should  be  exempt  from  liability  for 
everything  which  comes  under  the  head  of  '  accidents  of  navigation,' 
even  though  the  loss  from  these  may  be  indirectlj^  attributable  to 
some  fault  or  neglect  of  the  crew. 

It  is  desirable  that  the  common  form  of  bill  of  lading  should 
lay  down  clear  and  precise  rules  on  every  important  point  as  to 
wliicli  the  laws  of  different  countries  with  regard  to  Affreightment 
(lifl'er  from  one  another,  in  order  that  the  settlement  between 
HJiipowucr    and    cargo-owner    may   be    as    nearly  as   possible  the 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  8G1 

same,  iu  whatever  couutry  that  settlement  may  have  to  be  en- 
forced. 

A  common  form  of  bill  of  lading,  based  on  these  principles, 
was,  after  much  discussion,  agreed  to,  for  the  most  part  unanimously 
by  this  committee,  subject,  however,  to  revision,  after  being  sub- 
mitted by  the  representative  members  to  the  several  associations 
who  had  appointed  them.  It  was  arranged  that,  after  an  interval 
allowed  for  that  purpose,  any  suggestions  that  might  be  made  by 
the  associatious  should  be  taken  in  order. 

The  first  of  these  happened  to  be  the  Shipowners'  Association. 
Their  suggestions,  which  referred  only  to  matters  of  detail,  were 
discussed  and  for  the  most  part  adopted. 

At  this  stage  of  our  proceedings  a  letter  was  received  from  the 
secretary  of  the  Steamship  Owners'  Association,  which  is  printed 
below.  On  its  being  read,  the  representatives  of  this  association 
announced  to  the  committee  that  they  considered  this  letter  as 
putting  an  end  to  their  representative  functions,  and  that  they 
could  thenceforth  only  speak  as  individuals. 

At  the  following  meeting  of  the  committee  the  conclusion  was 
come  to  that,  in  view  of  the  action  thus  taken  by  the  Steamship 
Owners'  Association,  it  was  not  desirable  to  proceed  further  at 
present  in  the  discussion  of  the  bill  of  lading,  especially  as  there 
would  be  ample  opportunity  of  doing  so  at  the  approaching 
meeting  of  the  Association,  on  August  8  next.  It  was  therefore 
resolved  to  make  no  further  alterations  in  the  form  which  had  been 
framed  by  the  committee  up  to  that  point,  and  to  recommend  it  as 
a  basis  for  discussion  at  that  meeting. 

In  doing  so,  the  committee  desire  to  add  the  following  remarks, 
in  explanation  of  some  of  the  proposed  clauses  : — 

1.  The  clause  giving  liberty  '  to  deviate  so  far  as  reasonably 
necessary  for  saving  life  or  property '  is  inserted  to  meet  what  is 
thought  to  be  the  mischievous  effect  of  the  recent  decision  in  the 
case  of  Scaramanga  v.  Stamp,  which  subjects  the  shipowner  to  the 
highly  penal  consequences  of  a  '  deviation,'  whenever  the  master 
goes  out  of  the  direct  course,  or  delays  the  ship,  in  order  to  tow 
and  assist  a  ship  in  distress,  for  the  sake  of  saving  property,  as 
distinguished  from  the  saving  of  life.     As  a  consequence  of  this 


3G2  MAEITIME   LEGISLATION. 

decision,  it  is  well  known  that  peremptory  orders  are  given  by 
the  owners  of  many  steamers  to  their  captains,  on  no  account  to 
attempt  the  towing  or  assisting  of  disabled  ships,  but  to  take  off 
the  crews  and  passengers  and  abandon  the  ships.  Another  natural 
consequence  of  this  decision  is  a  material  increase  in  the  sums 
awarded  for  salvage  services.  These  evils  can  only  be  met  by  a 
clause  in  the  bill  of  lading,  such  as  that  here  proposed. 

2.  The  term  '  York-Antwerp  Code '  is  used,  in  preference  to 
York- Antwerp  Rules,  in  the  hope  that,  by  the  time  the  new  bill  of 
lading  comes  into  general  use,  those  rules,  now  coming  more  and 
more  to  be  adopted,  will  be  amended  and  completed,  so  as  to  con- 
stitute a  short  code  of  General  Average. 

3.  The  provisions  with  regard  to  pro  rata  or  distance  freight 
have  been  framed,  after  much  consideration,  in  the  hope  that  they 
may  be  accepted  in  other  countries,  as  well  as  our  own,  as  the 
basis  of  an  equitable  settlement  of  this  much-disputed  question. 
That  our  present  English  and  American  law  on  this  subject, 
which  differs  from  that  of  almost  every  other  country,  does  not 
altogether  work  well,  is  shown  in  a  striking  manner  when  cargoes 
of  small  cost,  such  as  coal  or  salt,  have  been  carried  for  a  part  of 
the  voyage  originally  intended,  and  then,  owing  to  sea-peril  pre- 
venting the  completion  of  the  voyage,  are  sold  for  perhaps  double 
or  treble  their  cost.  It  is  plainly  unreasonable  that  the  ship- 
owner, by  whose  expenditure  of  capital  this  enhanced  value  has 
been  created,  should  receive  nothing  in  return,  while  the  owner 
of  the  cargo  makes  a  gain  far  beyond  anything  he  could  have 
expected  had  the  voyage  been  completed  in  the  ordinary  way. 
On  the  other  hand,  when  the  voyage  is  not  performed,  and  the 
cargo  has  received  no  advantage  from  a  partial  carriage,  the 
English  and  American  rule,  of  giving  no  freight,  except  as  the 
result  of  a  new  bargain,  seems  to  be  reasonable  enough. 

•1.  The  clause  giving  liberty  to  the  shipowner  to  earn  his 
Acight  by  forwarding  the  goods  in  another  bottom,  when  the 
original  ship  has  been  disabled,  notwithstanding  that  the  ship 
jri;iy  have  been  abandoned  at  sea  by  the  crew,  and  afterwards 
ri^covered  by  salvors,  is  inserted  to  meet  the  recent  decision  in 
the  case  of  the  '  Cito,'  which  determines  that  such  an  abandon- 


INTERNATIONAL   LAW   OF  AFFREIGIITMENr.  803 

raent  totally  puts  an  end  to  the  contract  of  Affreightment,  so  that 
the  owner  of  the  cargo  may  demand  delivery  of  it,  at  any  inter- 
mediate port  into  which  the  ship  has  been  carried  by  the  salvors, 
free  of  all  charge  for  freight  This  inequitable  result,  it  would 
seem,  can  only  be  remedied  by  means  of  a  special  clause  in  the 
contract. 

In  conclusion,  the  committee  desire  to  record  the  special 
obligations  they  are  under  to  their  legal  members  for  the  valu- 
able time  given  and  services  rendered  by  them  to  this  work,  and 
also  to  the  representatives  of  the  underwriting  body  fur  the 
readiness  they  have  shown  to  fall  in  with  any  reasonable  arrange- 
ment that  may  be  come  to,  with  the  object  of  protecting  the 
merchant,  so  far  as  practicable,  as  between  the  bill  of  lading  and 

the  policy. 

(Signed,  by  order  of  the  committee) 

Richard  Lowndes,  Chairman. 

Liverpool :  July  19,  1882. 

'  COPY    OF   LETTER    EEFERRED    TO. 

•  Liveri)ool :  June  19,  1882.  , 
*  Dear  Sir, — The  form  of  bill  of  lading  prepared  by  your  com- 
mittee has  on  two  occasions  been  submitted  to  the  various  members 
of  this  Association,  and  has  had  their  careful  consideration.  It 
has  been  found,  however,  that  from  the  many  trades  which  are 
represented  in  the  Association,  each  requiring  different  provisions, 
applicable  to  its  trade,  it  is  impossible  for  the  Association  to  agree 
to  the  adoption  of  any  general  form  of  bill  of  lading.  I  am  desired, 
however,  to  state  that  the  various  members  will  give  the  provisions 
of  any  bill  of  lading,  which  may  be  recommended  by  your  commit- 
tee, their  most  careful  consideration. — Yours  truly, 

(Signed)         '  Gray  Hill,  Sccretar>j. 
*  Richard  Lowndes,  Esq.' 


Draft  bill  of  lading  presented  by  the  Liverpool  committee : — 

^  Shipped,  in  apparent  good  order  and  condition,  by  in 

and  upon  the  good  steam  ship  called  the  now 

*  For  the  form  as  finally  settled,  see  p.  379. 


304  MARITIME   LEGISLATION. 

lying  in  the  port  of  and  bound  for  with 

liberty  to  call  at  any  ports,  in  any  order,  to  sail  without  pilots,  and 
to  tow  and  assist  vessels  in  distress,  and  to  deviate  so  far  as  rea- 
sonably necessary  for  saving  life  or  property  ;  also  with  liberty,  in 
case  the  ship  shall  put  into  a  port  of  refuge  for  repair,  to  tranship 
the  goods  to  their  destination  by  any  other  steamer  (vessel)  ;  and 
with  liberty  to  convey  goods  in  lighters  to  and  from  the  ship,  at 
shipper's  risk.  Such  lighterage  to  be  at  ship's  expense,  except  that 
if  the  cargo  is  necessarily  landed  in  lighters,  the  ship  beiug  unable 
to  reach  the  port  of  destination,  the  cost  of  such  lighterage  shall 
fall  on  the  cargo. 

being  marked  and  numbered  as  per  margin  ;  and  to  be 
delivered  in  the  like  good  order  and  condition  at  the  aforesaid  port 
oi 

The  act  of  God,  fire,  barratry  of  the  master  and  mariners,  enemies,  pirates 
and  thieves,  arrest  and  restraint  of  princes,  rnlers  and  people,  coUisions, 
stranding,  and  other  accidents  of  navigation,  excepted,  even  when  occasioned  by 
the  negHgence,  default,  or  error  in  judgment  of  the  pUot,  master,  mariners,  or 
other  servants  of  the  shipowners. 

Ship  not  answerable  for  losses  through  exj)losion,  bursting  of  boilers, 
breakage  of  shafts,  or  any  latent  defect  in  the  machinery  or  hull,  not  result- 
ing from  want  of  due  diligence  by  the  owners  of  the  ship,  or  any  of  them,  or 
by  the  ship's  husband  or  manager ;  nor  for  decay,  putrefaction,  rust,  sweat, 
change  of  character,  di-ainage,  or  leakage,  arising  from  the  nature  of  the  goods 
shipped  or  the  insufficiency  of  the  packages ;  nor  for  any  damage  or  loss 
occasioned  by  the  prolongation  of  the  voyage  ;  nor  for  obliteration  or  absence 
of  marks,  numbers,  addresses,  or  descriptions  of  goods  shipped. 

unto  5  or  to  his  or  their  assigns, 

freight,  primage,  and  charges  for  the  said  goods,  as  per  margin, 
to  be  paid  by  .     Freight  to  be  paid  in 

cash,  without  discount ;  at  the  rate  of  exchange  for  bankers'  bills 
at  sight,  current  on  the  day  of  the  ship's  entry  inwards  at  the 
custom-house.  General  Average  payable  according  to  York- 
Antwerp  Code. 

Li  witness  whereof,  the  master,  or  agent,  of  the  said  ship  hath 
:ifTi lined  to  bills  of  lading,  all  of  this  tenor  and  date, 

llif  one  of  wliich  bills  being  accomplished,  the  others  to  stand  void. 


INTERNATIONAL  LAW   OF   AFFREIGHTMENT.  3Go 

1.  Quality  marks,  if  any,  to  be  of  the  same  size  as  and  contiguous  to  the 
leading  marks ;  and  if  inserted  in  the  shipping  notes  accepted  by  the  mate, 
the  master  is  bound  to  sign  bills  of  lading  conformable  thereto. 

2.  Ship  not  liable  for  breakage  of  glass,  earthenware,  or  china. 

3.  Not  accountable  for  goods  of  any  description  which  are  above  the  value 
of  1001.  per  package,  unless  the  value  be  herein  expressed  and  a  special  agree- 
ment made  ;  nor  for  gold,  silver,  bullion,  specie,  documents,  jewellery,  pictures, 
embroideries,  or  works  of  art,  silks,  furs,  china,  watches,  or  clocks,  unless  bills 
of  lading  are  signed  therefor,  with  the  value  therein  expressed,  and  a  special 
agreement  be  made. 

4.  Shippers  accountable  for  any  loss  or  damage  to  ship  or  cargo  caused 
by  inflammable,  explosive,  or  dangerous  goods,  shipped  without  full  disclosure 
of  their  nature,  whether  such  shipper  shall  have  been  aware  of  it  or  not,  and 
whether  such  shipper  be  principal  or  agent :  such  goods  may  be  thro'vn  over- 
board or  destroyed  by  the  master  or  owner  of  the  ship  at  any  time  without 
compensation. 

5.  All  fines  or  damages,  which  the  ship  or  cargo  may  incur  or  suffer  by 
reason  of  incorrect  or  insufficient  marking  of  packages  or  description  of  their 
contents,  shall  be  paid  by  the  shipper  or  consignee,  and  the  ship  shall  have  a 
lien  on  the  goods  of  such  shipper  or  consignee  for  the  amount  thereof. 

6.  Goods  delivered  to  the  ship,  whilst  on  quay  awaiting  shipment,  to  be  at 
shipjjer's  risk  as  regards  all  the  perils  excepted  in  this  bill  of  lading. 

7.  Goods  once  shipped  cannot  be  taken  away  by  the  shipjier  except  upon 
payment  of  full  freight,  together  with  the  expenses  of  landing  them,  and 
compensation  for  any  damages  sustained  by  the  owners  through  such  taking 
away. 

8.  In  case  the  ship  shall  be  prevented  from  reaching  her  destination  by 
quarantine,  blockade,  ice,  or  the  hostile  act  of  any  power,  the  master  or 
owners  may  discharge  the  goods  into  any  depot  or  lazaretto,  or  at  any  near 
available  port ;  all  expenses  thereby  incm-red  upon  the  goods  to  be  borne  by 
the  owners  or  receivers  thereof. 

9.  Ship  to  have  a  lien  on  all  goods  for  papnent  of  freight  and  charges, 
including  back  freight,  forwarding  charges,  and  charges  for  carriage  to  port 
of  shipment,  whether  payable  in  advance  or  not. 

10.  If  the  ship  is  able  to  carry  the  goods  to  their  destination,  but  the 
goods,  by  reason  of  damage  sustained  or  of  their  own  nature,  are  not  fit  to  be 
carried  all  the  way,  and  if  such  goods  have  received  an  enhancement  of  value 
by  reason  of  their  partial  carriage,  the  ship  shall  be  entitled  to  a  pro  rata 
freight  in  proportion  to  the  distance  performed,  which  freight  is  in  no  case  to 
exceed  the  amount  of  such  enhancement  of  value.  Pro  rata  fi-eight  is  ad- 
missible in  no  other  case  than  that  dealt  with  in  the  preeedmg  sentence, 
miless  there  be  an  acceptance  of  the  goods  by  the  shipper  or  owner  of  the 
goods. 

11.  AVhen  the  goods  are  fit  to  be  carried  to  their  destination,  but  the  ship 
is  unable  to  carry  them,  the  shipowner  may  earn  full  fi-eight  by  sending  the 
goods  to  their  destination  at  his  own  expense  in  another  bottom  :  this  right 
is  not  affected  bj'  an  abandomnent  of  the  ship  by  her  crew,  or  to  the  under- 
writers: and  the  ship  is  to  be,  for  this  purpose,  deemed  unable  to  carrj'  the 
goods  to  their  destination,  if  she  either  caimot  be  repaired  at  all,  or  cannot 
be  repiiircd  except  at  an  expense  exceeding  lier  value  when  repaired. 


3G0  MARITIME  LEGISLATION. 

12.  Full  freight  is  due  on  damaged  goods  ;  l)ut  the  consignee  is  at  liberty 
to  abandon  his  entire  consignment  for  the  freight  on  it,  provided  he  elects  to 
do  so  before  taking  delivery. 

13.  No  freight  is  due  on  any  increase  in  bulk  or  weight  caused  by  the 
absorption  of  water  during  the  voyage. 

14.  Freight  which  by  the  terms  of  the  bill  of  lading  is  made  payable  by 
the  consionee  cannot  be  demanded  from  the  shipper  after  the  master  has 
parted  with  his  lien  on  the  goods. 

15.  The  goods,  if  not  taken  by  the  consignee  immediately  on  landing,  or 
within  such  further  time  as  is  provided  by  the  regulations  of  the  port  of 
discharge,  may  be  stored  by  the  master,  at  the  consignee's  expense  and  risk. 

16.  In  the  event  of  claims  for  short  delivery,  when  the  ship  reaches  her 
destination,  the  price  to  be  the  market  price  at  the  port  of  destination  on  the 
day  of  the  ship's  reporting  at  the  custom-house,  less  all  charges  saved. 

Notice. — In  accepting  this  bill  of  lading,  tlie  owner  of  the 
goods  and  the  shipper  expressly  accept  and  agree  to  all  its  stipu- 
lations and  conditions,  whether  written  or  printod. 

Dated  in  Liverpool,  this  day  of  188     . 

Weight  and  contents  unknown. 

{The  words  X)rinte(l  in  italics  are  to  be  omitted  in  the  case  of  sailing  ships.) 

^Fr.  Atkinson,  of  Hull,  as  representative  of  the  Chamber  of 
Shipping  of  London,  and  of  the  Hull  Chamber  of  Commerce, 
seconded  the  resolution. 

A  discussion  ensued,  in  which  Dr.  Wendt,  Mr.  James  Samuel- 
SON,  ]Mr.  Shotton,  and  others  took  part,  in  the  course  of  which 
doubts  were  expressed  as  to  the  meaning  to  be  attached  to  the 
resolution  ;  but  the  President  having  intimated  that,  if  it  were 
passed,  he  should  rule  that  members  would  not  be  consequently 
precluded  from  raising  any  question  on  the  subject,  the  resolution 
was  imanimously  adopted. 

Mr.  Lowndes  next  moved  :  '  That  there  should  be  a  common 
form  of  bill  of  lading,  and,  admitting  that  there  may  be  reasons 
for  spfcial  clauses  in  particular  trades,  and  iilso  admitting  the 
]»riiifi|)l('  of  frcodom  of  confraft,  it  would  be  convenient  that  any 
s])f'cial  or  additional  clauses  should  be  .printed  or  written  in  such 
manner  as  to  be  easily  distinguishable  from  the  common  form.' 
Adding  tliat  this  would  imjily  tlie  principle  of  a  common  form  of 
liill   of  hiding,  witlioui    liainpcring  the  freedom  of  contract.     The 


'       INTERNATIONAL  LAW   OF  AFFREIGHTMENT.  307 

common  form  would  stand  like  the  Lloyd's  form  of  a  policy  of 
insurance,  as  a  basis  which  all  knew  and  understood.  Then  if  the 
parties  wished  to  vary  the  common  form  in  any  way,  as  in  certain 
trades,  or  on  particular  occasions  it  might  be  necessary  to  do,  such 
variation  would  be  stated  in  the  margin.  This  was  the  extent  to 
which  he,  and  the  Chamber  he  represented,  advocated  a  common 
form. 

Mr.  John  Glover,  of  London,  seconded  the  resolution. 

Mr.  Laurence  R.  Baily,  of  Liverpool,  objected,  observing  that 
until  it  be  seen  what  bill  of  lading  is  approved  of  by  the  conference, 
it  would  be  premature  to  determine  whether  its  adoption  would  be 
advisable. 

Mr.  Shotton,  of  Liverpool,  supported  the  resolution. 

Mr.  Cornelius  Walford,  of  London,  said  that  the  bill  of 
lading  which  was  in  ordinary  use  was  the  same  as  that  used  two 
thousand  years  ago.  There  were  not  thirty  words  different  in  the 
bill  of  lading  which  Cicero  pleaded  upon  and  that  which  was  in 
use  at  the  present  day.  A  common  bill  of  lading  for  international 
purposes  he  believed  to  be  an  impossibility,  although  he  wished  it 
were  otherwise. 

Mr.  Gray  Hill,  of  Liverpool,  remarked  that  he  did  not  see 
any  probability  of  so  altering  the  law  as  it  now  existed  as  to  lead 
to  any  material  change.  There  was  a  skeleton  bill  of  lading  in 
existence  at  the  present  time ;  the  resolution  was  therefore  futile. 

Mr.  Wp:stgarth,  of  Melbourne,  thought  that,  as  a  national 
assembly,  it  was  their  duty  to  aim  at  an  international  bill  of  lading, 
and  he  supported  the  resolution. 

The  resolution  was  then  carried  nem.  con. 

Mr.  Richard  Lowndes  next  moved  the  adoption  of  the  follow- 
ing clause  in  the  report  of  the  Liverpool  committee :  '  That  the 
principle  of  the  common  form  of  bill  of  lading  should  be  this — 
that  the  shipowner,  whether  by  steam  or  sailing  ship,  should  be 
liable  for  the  faults  of  his  servants  in  all  matters  relating  to  the 
ordinary  course  of  the  voyage,  such  as  the  stowage  and  right  de- 
livery of  the  cargo,  and  other  matters  of  this  kind ;  but,  on  the 
other  hand,  the  shipowner  should  be  exempt  from  liability  for 
evervthing  which  comes  under  the  head  of  '  accidents  of  navisration. 


.368  MAKITIME    LEGISLATION 

even  tkougli  the  loss  from  these  may  be  indirectly  attributable  to 
some  fault  or  neglect  of  the  crew.' 

Mr.  Atklxson,  of  London  and  Hull,  seconded  the  resolution. 

I  then  moved  as  an  amendment :  '  That  the  words,  "  even 
though  the  loss  from  these  may  be  indirectly  attributable  to  some 
fault  or  neglect  of  the  crew,"  be  omitted.' 

Mr.  James  Samuelsox,  of  Liverpool,  seconded  the  amendment. 
He  held  that  the  shipowner  should  have  such  men  in  his  employ- 
ment as  were  able  to  navigate  his  vessel  and  look  after  the  interests 
confided  to  them.  He  also  objected  to  the  motion,  because  it 
seemed  to  him  to  be  indirectly  reviving  a  principle  which  it  had 
been  sought  to  abrogate  by  the  Employers'  Liability  Act.  It 
would  practically  make  the  masters  and  navigators  of  vessels  care- 
less in  the  performance  of  their  duties  ;  and  although  by  some 
arrangement  the  loss,  so  far  as  the  goods  were  concerned,  might 
not  fall  upon  the  shipper  or  receiver,  it  would  be  indirectly,  and  in 
a  very  marked  manner,  endangering  the  lives  of  passengers  and 
others.  He  thought  the  recommendations  of  the  Liverpool  com- 
mittee would  have  been  of  more  value  if  there  had  been  attached 
to  it  the  opinion  of  the  General  Brokers'  Association,  who  in  reality, 
to  a  very  large  extent,  represented  the  shippers  and  receivers  of 
goods. 

^Ir.  John  Glover,  of  London,  pointed  out  that  shipowners  were 
not  at  liberty  to  select  whom  they  liked  to  command  and  navigate 
their  vessels,  but  they  were  restricted  to  persons  whose  competency 
was  tested  by  Government  examinations.  It  would  be  a  puzzle  to 
him  to  find  a  bill  of  lading  of  any  shipping  line  of  importance  in 
which  the  clause  contained  in  the  resolution  did  not  appear.  One- 
half  or  two-thirds  of  the  companies  which  carried  goods  to  and 
from  our  shore,  including  the  Peninsular  and  Oriental  and  Royal 
Mail  Steamship  Companies,  conveyed  them  on  bills  of  lading 
containing  tins  clause,  and  on  public  grounds  they  asked  that  that 
which  was  already  so  general  should  be  nuide  universal.  Repre- 
senting the  Shipowners'  Society  of  London,  he  stated  that  their 
reasons  for  desiring  exemption  from  liability  for  the  acts  of  their 
crews  were  that  the  responsibility  was  not  really  theirs  ;  it  had 
oiilv  lii'i'ii    pill    upon    tlicjii   l)v  recent  decisions   in   the  (courts,  and 


INTERNATIONAL   LAW   OF   AFFRIOIGHT.MENT.  3B9 

act  by  any  diroct  statute  ;  that  they  hal  to  b?ar  very  heavy  risks 
as  shipowners  iu  tlie  ordinary  prosecution  of  tlicir  business ;  and, 
aware  of  these  risks,  they  took  precautions  against  them,  their 
own  vigilance  being  supplemented  in  every  way  by  that  of  the 
law. 

The  Hox.  David  1)ii[)LKV  I^'ikld,  of  New  York,  asked  whether 
they  would  or  would  not  l)y  this  resolution  change  the  law.  If 
they  put  goods  upon  the  London  and  North- Western  Railway  in 
Liverpool  for  London,  and  they  wore  lo?t  through  the  fault  of  the 
company's  servants,  would  they  not  recover  from  the  company  ? 
He  thought  all  would  agree  that  the  proposal  was  not  in  accord- 
ance with  the  law  as  affecting  goods  carried  by  land,  and  therefore 
the  effect  of  it  would  be  to  have  a  law  for  the  sea  different  from 
that  for  the  land.  In  his  opinion  the  common  form  should  be  : 
'  Received  certain  goods  to  be  carried  to 

.'      Everything  else  should  be  contained,  not  in  the 
bill  of  lading,  but  in  a  Code  of  Law.     He  opposed  the  motion. 

Mr.  Coudert,  of  New  York,  thought  it  unwise  to  adopt  the 
resolution  ;  its  effect  would  be  to  permit  the  existence  of  a  liability 
on  land  which  was  abolished  on  the  sea,  without  any  apparent 
object  except  the  convenience  of  the  shipowner,  and  the  philosophy 
of  this  had  not  been  explained.  The  general  interest  of  the  com- 
mercial traveller  should  rather  be  considered,  and  the  efforts  of  the 
Association  should  be  directed  to  finding  out  what  would  be  most 
conducive  to  diligence  on  the  part  of  the  shipowner. 

Mr.  Shotton,  of  North  Shields,  supported  the  motion.  He 
observed  that  there  were  such  things  as  Board  of  Trade  inquiries, 
which  by  keeping  a  check  on  the  crews  of  vessels,  to  that  extent 
safeguarded  the  interests  of  the  merchant.  Both  merchant  and 
shipowner  had  insurable  risks,  and  it  was  their  duty  to  insure 
them. 

Mr.  Engels,  of  Antwerp,  held  that  it  was  practically  impossible 
to  render  a  shipowner  responsible  for  the  faults  of  all  his  crew. 
Some  of  the  men  had  to  be  shipped  at  the  last  moment  in  the 
place  of  others  who  had  neglected  to  join,  and  there  was  no  possi- 
bility of  examining  their  character  and  qualifications. 

Mr.  J.  G.  Alexander,  of  London,  explained  that  the  limitation 

B  B 


370  MARITIME    LEGISLATION. 

of  liability  of  railway  companies  applied  only  to  valnaLles,  and  not 
to  ordinary  goods. 

Mr.  Donald  Kennedy,  of  Liverpool,  tlionglit  that  the  ship- 
owner, having  provided  a  good  ship,  and,  as  far  as  he  could  judge, 
a  o-ood  crew,  had  done  his  duty,  and  all  the  rest  was  a  risk  which 
might  fairly  be  covered  by  insurance,  and  he  supported  the 
resolution. 

Mr.  Gray  Hill,  of  Liverpool,  said  it  struck  him  that  there  was  a 
most  important  point  of  difference  between  the  land-carrier  and  the 
carrier  bv  sea.  The  case  of  railway  companies  was  not  analogous 
to  that  of  shipowners.  Why  was  it  that  an  employer  on  land  was 
held  responsible  for  the  acts  of  his  servants  ?  He  took  it  that  it 
was  partly  because  he  selected  his  own  servants,  but  still  more 
strongly  because  he  had  an  opportunity  of  superintending  the  ser- 
vant's acts  and  of  dismissing  him  if  he  found  he  was  acting  care- 
lessly. A  railway  company  had  the  conduct  of  an  engineer  or 
guard  constantly  under  its  supervision  ;  but  a  shipowner,  having 
done  his  best  to  prepare  his  ship  for  sea,  and  having  selected  the 
best  oflBcers  and  men  he  could  get,  had  no  means  of  communication 
with  her  after  she  left  Liverpool  or  any  other  port  until  she  reached 
her  port  of  destination  or  of  call.  It  was  impossible  for  him  to 
superintend  his  servants,  or  to  tell  what  they  were  doing.  If  they 
were  doino'  wrong  he  had  no  means  of  knowing  it,  and  no  means 
of  dismissing  them  and  putting  proper  persons  in  their  places. 
There  was  also  another  distinction  between  railway  companies  and 
shipowners.  A  railway  company  had  a  monopoly.  It  had  gone  to 
Parliament  for  compulsory  powers  to  take  land  and  houses  for  the 
making  of  the  railway,  and  Parliament  had  properly  said  it  should 
not  have  those  powers  unless  it  had  certain  liabilities.  But  the 
shipowner  had  no  monopoly.  What  was  to  prevent  any  number 
f)f  caro-o-owners,  who  thought  the  terms  of  the  bill  of  lading  were 
to  their  disadvantage,  from  combining  together  and  starting  a  line 
of  ships  for  themselves  ?  Or  what  was  to  ])r('V('nt  other  shipowners, 
who  were  bidding  for  popularity  and  custom,  from  omitting  the  ob- 
noxious conditions?  ^riicrc  was  no  moiio])oly  in  the  matter.  No- 
l)o(ly  was  oljliged  to  travel  or  to  send  his  goods  by  any  ])articulnr 
line  or  ship,  and   the  matter  adjusted  it'^elf  naturally  according  to 


INTERNATIONAL  LAW   OF  AFFREIGHTMRNT.  371 

the  principles  of  free  trade.  Another  reason  why  he  opposed  tlie 
amendment  was  that  he  felt  satisfied  that  if  it  were  carried  it  would 
lead  to  no  practical  esult,  because,  in  order  to  establish  a  contract 
which  they  were  to  recommend  parties  to  adopt,  they  must  sup- 
pose that  the  parties  were  willing  to  adopt  it ;  and  what  inducement 
was  there  for  a  shipowner — a  steamsliip  owner  particularly — to 
adopt  a  contract  which  was  going  to  increase  his  liabilities  very 
greatly  ?  Tf  the  amendment  were  carried,  there  was  an  end  to  the 
discussion.     He  supported  the  resolution. 

Mr.  G.  a.  Laws,  speaking  on  behalf  of  the  Newcastle  ship- 
owners, opposed  the  amendment.  The  responsibility,  he  said,  for 
human  fjillibility,  was  divided  by  Mv.  Lowndes  between  both  sets 
of  underwriters ;  it  would  be  made  by  Dr.  Wendt  to  rest  entirely 
on  those  of  the  shipowner. 

Herr  Meier,  of  Bremen,  doubted  whether  anybody  would  own 
ships  if  shipowners  were  to  be  made  liable  for  losses  arising  from 
the  faults,  and  even  errors  of  judgment,  of  their  crews.  The  insur- 
ance companies  had  to  cover  this  risk  for  those  who  insured.  He 
supported  the  resolution. 

After  I  had  been  heard  in  reply, 

The  amendment  was  put  to  the  meeting  by  the  Chairman  and 
negatived  by  a  considerable  majority.  The  resolution,  beino-  at 
once  put  substantively,  was  carried  by  a  similar  majoritv. 

The  meeting  then  adjourned. 


On  the  conference  reassembling,  tlie  debate  on  the 
proposed  Liternational  Bill  of  Lading  was  resumed. 

Mr.  Richard  Lowndes  suggested  that  Mr.  Shotton's  proposals 
should  be  taken  first,  but,  on  Mr.  Atkinson  objecting  to  this 
manner  of  proceeding,  withdrew  his  suggestion. 

Mr.  Lowndes  being  then  called  upon  by  the  Chairman,  pro- 
ceeded to  read  the  draft  bill  of  lading  clause  by  clause. 

The  following  amendments  were  moved  : — 

By  :Mr.  Atkinson  :  '  That  the  word  "  either  "  be  inserted  before 
life,  in  the  phrase  "  for  saving  life  or  property." ' 


372  MARITDII'    LEfJISLATION. 

The  amendment  was  secontled  by  Mk.  Siiotton,  but  after  a  short 
discussion  was  withdrawn. 

Bv  Dr.  Stubbs  :  '  That  no  special  clauses  be  inserted  in  the  bill 
of  ladincr,  but  that  all  such  clauses  be  inserted  in  a  Code  of  Af- 
freightraent  instead  of  a  bill  of  lading.' 

Dr.  Stubbs  said  that  he  moved  the  amendment  as  secretary  of 
the  committee,  and  in  accordance  with  the  opinions  expressed  by 
some  of  the  foreign  committees. 

The  President  ruled  this  motion  out  of  order  in  the  present 
stage  of  the  proceedings. 

By  Mr.  Gray  Hill:  'That  the  words  "the  pui-pose  of"  be 
inserted  after  the  word  "  for,"  and  before  the  word  "  saving,"  in  the 
phrase  "  necessary  for  saving  life  or  property."  ' 

The  amendment,  being  seconded  b^^  Mr.  Atkinson,  was  carried 
unanimously. 

By  Mr.  John  Glover  :  '  That  the  words  "  so  far  as  reasonably 
necessary  "  be  omitted.' 

!Mr.  Glover  contended  that  the  liberty  to  save  life  and  property 
should  be  an  absolute  liberty. 

I  seconded  the  amendment,  remarking  that  a  captain  of  a  vessi^l 
ought  not  to  be  put  in  a  position  of  having  to  weigh  in  his  mind 
the  question  whether  or  not  he  would  be  justified  in  deviating  from 
his  course  to  save  life. 

Mr.  Walford  supported  the  amendment. 

Mr.  Lowndes  said  the  question  had  been  very  serioush"  discussed 
]>y  the  committee,  and  there  had  been  a  good  deal  of  argument  on 
l)oth  sides,  but,  in  the  judgment  of  the  committee,  the  balance  was 
in  favour  of  retaining  the  cautionary  words. 

M\i.  SiiOTTON  was  afraid  that,  if  the  words  were  retained,  a  cap- 
tain of  a  steam  or  sailing  ship  would  be  very  chary  about  deviating 
from  his  course,  even  for  the  purpose  of  saving  life,  lest  he  might 
be  held  lialjle  for  any  loss  that  might  unfortunately  result. 

Mi{.  Westgartii  su])ported  the  amendment. 

Mj{.  CoiDERT  said  it  was  a  question  whether  a  deviation  for  the 
■|)urpose  of  saving  life  could  ever  be  unreasonable.  If  a  captain  had 
lli;it  |)iir|)os('  ill  his  iiiiiid  in  dc\i:iting  from  his  course,  his  coiuliict 
c-iinid  not  bf   considci'cd    iinrcasonaldc.      Tlic  woi'ds  were  therefore 


INTEKNATIONAL   LAW   OF   AFFREIGIIT.MENT.  ;57.J 

sui'i)! usage,  antl  he  thoui^'lit  tliut  wlierever  tliey  could  strike  out  an 
unnecessary  word  they  should  do  so. 

Mil.  Coke  thought  it  would  be  unreasonable  for  a  ship  of  5,000 
tuns  to  deviate  from  its  course  for  the  purpose  of  saving  a  ship  of 
lifty  tons,  if  the  cargo  of  the  larger  ship  would  thereby  be  put  in 
danger  ;  but  if  the  bill  of  lading  gave  the  captain  power  to  deviate 
under  any  circumstances,  his  action  could  not  be  disputed.  He 
opposed  the  amendment. 

Sir  Travehs  Twiss  supported  the  amendment,  remarking  that 
if  the  clause  simply  dealt  with  the  saving  of  property  the  words 
would  be  useful ;  but,  as  it  dealt  also  with  the  saving  of  life,  they 
would  limit  very  much  the  discharge  of  the  duties  of  humanity. 

Mr.  Atkinson  also  supported  the  amendment. 

Mr.  Sparrow,  as  one  of  the  committee  which  hud  drawn  up 
the  bill  of  lading,  protested  against  the  elimination  proposed,  on 
the  ground  that  it  would  be  holding  out  an  inducement  to  captains 
to  go  in  for  saving  property  at  sea  for  salvage  purposes,  in  the  in- 
terests of  themselves  and  their  owners,  quite  irrespective  of  the 
owners  of  cargo  committed  to  tlieir  charge.  No  one  could  for  a 
moment  dispute  the  reasonableness  of  a  deviation  for  the  purpose 
of  saving  life,  and  there  could  therefore  be  no  fear  of  life  not  being 
saved  if  the  clause  stood  as  printed ;  but  if  the  words  quoted  were 
struck  out,  there  was  very  great  reason  to  fear  that  the  property 
in  the  salvor's  ship  might  be  put  to  very  great  risk  in  attempts  to 
save  other  property  merely  for  the  purpose  of  obtaining  salvage 
for  the  benefit  of  the  captain  or  owners  of  the  deviating  ship. 

Mr.  Gray  Hill  supported  the  amendment. 

Mr.  Wilson  opposed,  and  ]\[r.  Hodgkinson  spoke  in  favour 
of  it. 

The  amendment,  being  put  to  the  vote,  was  carried  by  a 
majority  of  1 1 ;   20  members  voted  for  and  9  against  it. 

By  ;Mr.  Atkinson  :  '  That  the  words  "  considerable  repairs  "  be 
substituted  for  the  word  "  repair."  ' 

This  amendment  was  not  seconded. 

By  Myself  :  '  That  the  words  "  also  with  liberty,  in  case  the 
ship  shall  put  into  a  port  of  refuge  for  repair,  to  tranship  the  goods 
to  their  destination  by  any  other  steamer  (vessel)  "'  be  omitted.' 


374  MARITIME    LEGISLATION. 

]\Ir.  Atkinson  seconded  the  amendment,  observing  that  in  his 
opinion  the  liberty  proposed  should  only  be  given  when  consider- 
able repairs  were  necessary,  inasmuch  as  many  cargoes  deteriorated 
in  value  by  the  number  of  times  they  were  turned  over. 

Mr.  Richard  Lowndes,  Mr.  Engels,  Mr.  John  Glover,  and 
Mr.  Donald  Kennedy  opposed  the  amendment,  and  Mr.  Baily 
supported  it,  observing  that  he  had  known  a  master  tranship 
because  he  could  get  a  better  freight  by  so  doing. 

On  being  put  to  the  vote,  the  amendment  was  negatived  by  1 5 
votes  to  8. 

By  Mr.  Baily  :  '  That  the  words  "  necessarily  put  into  a  port  of 
refuge,  and  such  putting  in  will  entail  great  delay  and  expense, 
the  master  may  "  be  inserted  instead  of  the  words  "  put  into  a  port 
of  refuge  for  repair,  to." ' 

The  amendment  was  seconded  by  Mr,  Atkinson,  and  opposed 
by  Mr.  Eichard  Lowndes,  and  rejected  by  18  votes  to  5. 

By  Mr.  Atkinson:  'That  the  words  "if  unavoidable"  be 
inserted  after  the  words  "  to  and  from  the  ship."  ' 

This  amendment  was  not  seconded. 

By  Mr.  Gray  Hill  :  'That  the  words  "perils  of  the  sea"  be 
inserted  after  the  words  "  act  of  God." ' 

llie  amendment  was  seconded  by  Mr.  John  Glover,  and  carried 
by  17  votes  to  !■. 

By  ^Ir.  Baily  :  '  That  the  words  "  barratry  of  the  master  and 
mariners"  be  omitted.' 

Dr.  Stubbs  seconded  the  amendment,  observing  that  the 
word  '  barratry '  conveyed  entirely  different  meanings  in  diffennit 
countries,  and  was  therefore  unsuitable  for  an  international  bill 
of  lading, 

^\r.  Richard  Lowndes  and  Mr.  Walford  opposed  the  ameuil- 
ment,  which  was,  on  being  put  to  the  vote,  negatived  by  19  votes 
to  3. 

]^y  Jl  i)(ii-;  "\\'ai;i;i;n  :  '  Tliat  ihc  words  "  act  of  God  "  be  struck 
out,  on  the  grounds  that  llie  phrase  was  superfluous  and  irreverent.' 

I'roeessor  I'KABODV,  ill  seconding  the  amendment,  said  that 
he  did  not  like  fo  have  the  misfortunes  and  accidents  of  the  sea 
attcihutf'd  to  tlif  Suprcjue  J5eing. 


INTEiLNATlUNAL   LAW    OF   AlTlJElGIlTMEiNT.  :i7r, 

Mk.  Lowndes  deprecated  the  iutroductioii  of  tlieoluyical 
argument. 

The  Hon.  David  JJudlky  Field  tliought  it  was  not  a  question 
of  theology,  but  of  taste  and  reverence.  He  suggested  the  sub- 
stitution of  Ihe  words  '■"inevitable  accident"  or  "superhuman 
cause." 

Mk.  Westuaktii  observed  that  to  leave  out  the  old  phrase,  'the 
act  of  God,'  would  be  tantamount  to  a  revolution. 

^Mk.  Atkinson  said  there  was  no  more  irreverence  in  inserting 
the  words  '  the  act  of  God,'  than  in  using  the  phrase  '  so  help  me 
God,'  wliea  people  gave  evidence.  He  objected  most  thoroughly 
to  omitting  from  the  bill  of  lading  words  w  hich  had  descended  to 
them  as  a  relic  of  the  piety  of  their  forefathers. 

Mil.  Gkey  Hill  said  the  words  had  received  a  judicial  inter- 
pretation for  many  years,  but  '  superhuman  cause '  would  cover 
them. 

Mr.  ColDERT  thought  the  phrase  should  be  retained  as  an 
expression  of  reverence. 

M.  Clun'ET  supported  the  rejection  of  the  phrase,  as  being 
completely  useless.  The  words  '■  casus  furtuitus,'  which  were  used 
in  the  bills  of  lading  in  ancient  Rome,  appeared  to  him  to  be 
sufficient  for  all  species  of  bills  of  lading.  If  they  inserted  the 
words  '  the  act  of  God,'  they  would  be  equally  necessary  in  a 
contract  for  the  transport  of  goods  by  rail. 

I  remarked  that  no  such  words  as  '  the  act  of  God '  appeared 
in  the  German  bill  of  lading. 

The  resolution  was  rejected  by  27  votes  to  12. 

The  conference  then  adjourned  until  two  o'clock. 

On  reassembling,  the  consideration  of  the  proposed  bill  of 
lading  was  continued,  and  amendments  were  further  moved  as 
follows : — 

By  Mk.  Hodgkinson  :  '  That  the  word  "  crew  "  be  substituted 
for  the  word  "  mariners,"  in  the  phrase  "  barratry  of  the  master 
and  mariners." ' 

This  was  seconded  by  nie.  and  cairied  by  8  votes  to  j. 

By  MvsELf  ;   •  That  the  words  ■'  even  when  occasioned  by  the 


37(3  MAKlTLMi:   LEGISLATION. 

negligence,   default,   or  error  in  judgment  of   the   pilot,   master, 
mariners,  or  other  servants  of  the  shipowners,"  be  omitted.' 

Mr.  Hoyne,  of  Chicago,  seconded  the  amendment,  which  was 
supported  by  Dk.  Molengraaff,  Mr.  Coudert,  Dr.  Jacobsen,  and 
M.  Clunet  ;  and  opposed  by  Mr.  Atkinson,  Mr.  John  Glover, 
Mr.  Walford,  Mr.  Shotton,  Mr.    Richard  Lowndes,  and  Mr. 

HODGKEVSON. 

After  I  had  been  heard  in  reply,  the  amendment  was  put  to 
the  vote,  and  rejected  by  22  votes  to  7. 

By  Mr.  Sparrow  :  '  That  the  following  words  be  added  after  the 
phrase  "  description  of  goods  shipped  "  :  "  provided  that  no  clause 
in  this  bill  of  lading  shall  have  the  effect  of  relieving  the  ship 
from  liability  for  the  right  delivery  of  the  cargo,  or  for  damage 
arising  from  improper  stowage." ' 

The  amendment  was  seconded  by  Mr,  Coke,  but  rejected  by 
21  votes  to  5. 

By  Dr.  Molengraaff:  'That  the  words  "nor  for  losses  or 
deterioration  arising  from  the  nature  "  be  substituted  for  the  words 
"  nor  for  decay,  putrefaction,  rust,  sweat,  change  of  character, 
drainage  or  leakage  arising  from  the  nature." ' 

The  amendment  was  not,  however,  seconded. 

By  Mr.  John  Glover  :  '  That  the  words  "  on  delivery  "  be 
inserted  after  the  word  "  paid,"  in  the  phrase  "  as  per  margin,  to 
be  paid  by." ' 

The  amendment  was  seconded  by  Mr.  Kennedy,  and  supported 
by  me,  and  carried  unanimously. 

J3y  Dr.  Tomklns  :  '  That  the  word  "  Rules  "  be  substituted  for 
the  word  "  Code,"  in  the  phrase  "  York- Antwerp  Code."  ' 

Mr.  William  Hope  seconded  the  amendment.  Dk.  Wendt 
liaving  spoken  in  support  of,  and  Mr.  Lowndes  against  it,  it  was 
put  to  the  vote  and  adopted,  the  numbers  being  24  to  3. 

By  ]\Ii<.  Siioiio.N  :  '  Tlial  I  he  words  ''  if  iu  the  United  Kingdom 
of  Creat  Britain  and  irclajid,  l)iit  if  elsewhere,"  be  inserted  after 
the  words  "  wii  h. lilt  (lisc()imt."' ' 

This  was  s<'i<iinle(|  by  iiie.  lint,  alter  some  discussion,  rejected 
bv  2'j  votes  to  2. 


INTERNATIONAL   LAW    OF   Al'FltElGIlTMEXT.  ^77 

By  Mk.  Van  KEfEN:  'That  the  words  "  or  its  equivalent"  Lo 
inserted  after  the  words  "  in  casli."  ' 

The  amendment  was  seconded  by  Mr.  Engels,  but  rejected, 
8  members  voting  for  it  and  4-  against. 

By  Mu.  Atkinson  :  '  That  the  words  "  hath  affirmed  to  three 
bills  of  lading  all  of  this  tenor  and  date,  drawn  as  first,  second, 
and  third,  the  first  of  which  bills  being  accomplished,  the  others 
to  stand  void,*'  be  substituted  for  the  words  "  hath  affirmed  U) 
bills  of  lading,  all  of  this  tenor  and  date,  the  one  of  which  bills 
being  accomplished,  the  others  to  stand  void."' ' 

Mr.  John  Glover  having  seconded  the  amendment,  Mr. 
Westgarth  moved  the  insertion  of  a  clause  to  the  effect  tliat  there 
should  be  '  certified  copies  of  any  number'  of  the  bill  of  lading. 

This  proposal  was,  however,  negatived  by  11  votes  to  4,  and 
Mr,  Atkinson's  amendment  carried  by  14  to  1. 

A  proposition  having  been  made  by  Judge  Warren,  and 
j^econded  by  Mr.  Walford,  to  the  effect  that  the  position  of  the 
word  '  excepted,'  in  the  earlier  part  of  the  bill  of  lading,  should  be 
altered,  Mr.  Atkinson  rose  to  order,  and  it  was  overruled  by  the 
Chairman. 

A  discussion  then  arose  as  to  whether  the  remaining  clauses 
should  be  proceeded  with  by  the  meeting,  or  should  be  referred 
to  a  committee ;  but  it  was  decided  to  pi'oceed. 

It  was  then  moved  by  Mr.  Sparrow  :  '  That  the  words  "  and 
whether  such  shipper  be  principal  or  agent,"  in  clause  4,  be  omitted.' 

No  member  rising  to  second  the  amendment,  it  was  not  put  to 
the  vote. 

By  Mr.  Atkinson  :  '  That  the  words  "  as  regards  all  the  perils 
excepted  in  this  bill  of  lading,"  in  clause  6,  be  omitted.' 

Mr.  Shotton  seconded  the  amendment. 

Mr.  Lowndes  arid  Mr.  Sparrow  having  spoken  against  it,  and 
Mr.  Atkinson  replied  on  the  objections,  it  was  put  to  the  meeting 
and  rejected  by  13  votes  to  4. 

By  Mr.  Atkinson:  'That  the  words  '-or  mob"  be  inserted 
after  the  word  "  power,"  in  clause  8. 

The  amendment,  however,  was  not  seconded. 

Bv  ^[r.  CoiDEnT  :  •  That  the  words  ■■  a  lien  thereon  "'  be  substi- 


378  MAKITLME   LEGISLATION. 

tuted  for  the  words  '•  borue  by  the  owners  or  receivers  thereof,"  in 
da  use  8.' 

M.  Clunet  seconded  the  amendment,  but  it  was  lost  by  7  votes 
to  4. 

By  Mr.  Shottox  :  '  That  tlie  word  "  demurrage  "  be  inserted 
after  the  words  "  back  freight,"  in  clause  9.' 

^Ik.  Exgels  seconded  the  amendment,  and  it  was  carried  by  9 
votes  to  4. 

By  Mr.  Engels  :  '  That  clause  10  be  omitted.' 

This  was  seconded  by  Mr.  William  Hope,  and  supported  by 
Dr.  Molengraaff.  Mr.  Lowndes  having  been  heard  contra,  and 
Mr.  Exgels  in  reply,  it  was  put  to  the  vote  and  negatived  by  18 
votes  to  6. 

By  Mr.  Atkinson  :  '  That  the  words  "  but  the  consignee  is  at 
liberty  to  abandon  his  entire  consignment  for  the  freight  on  it,  pro- 
vided he  elects  to  do  so  before  taking  delivery,"  in  clause  12,  be 
omitted.' 

Mr.  Shotton  seconded  the  amendment,  and  it  was  carried  by 
15  votes  to  9. 

By  Mr.  Atkinson  :  '  That  clause  14  be  omitted.' 

This  was  seconded  by  Mr.  Shotton,  but  rejected,  9  members 
voting  for  and  12  against  it. 

By  Mr.  Hodgkinson  :  '  That  the  words  "  voluntarily  aban- 
doned '  be  substituted  for  the  words  "  parted  with,"  in  clause 
11.' 

^1r.  Shotton  having  seconded,  and  Mr.  Coudert  spoken  against 
the  amendment,  it  was  negatived  by  13  votes  to  5. 

By  ^lu.  Gray  Hill:  'That  the  words  "to  the  extent  of  the 
value  of  the  lien  "  be  inserted  at  the  beginning  of  clause  14.' 

The  amendment  having  been  seconded,  was  carried  by  9  votes 
to  o. 

By  Sir  Ti{avej{S  Twiss  :  '  That  the  word  "  consignee  "  be  sub- 
stituted for  the  word  "consignees  "  in  the  early  part  of  clause  15.' 

This  was  agreed  to  unanimously. 

By  ^I.  Clunet  :  'That  the  following  paragi-aph  be  inserted 
at  IJif  end  of  clause  15  :  "  Tiic  master  shall  be  entitled  to  recover 
from  tlie  shipper  the  difference  between  tin'  amount  of  friMght  sti- 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  ;j79 

pulutecl  in  the  bill  of  lading  and  the  proceeds  of  the  goods,  should 
the  consignee  neglect  or  refuse  to  receive  the  same."  ' 

Tliis  was  seconded  by  Mr.  Rouse,  and  supported  by  Mr. 
COUDERT,  and,  Ix-iug  put  to  the  meeting,  was  carried  by  17  votes 
to  1. 

By  Mr.  E^'GELS  :  '  That  the  words  "  at  the  expense  and  risk  of 
the  owner  of  the  goods  "  be  substituted  for  the  words  "  at  the  con- 
signee's expense  and  risk,'"  in  clause  15.' 

Mr.  Coudert  seconded  the  amendment,  and  it  was  carried 
unanimously. 

By  Mr.  Walford  :  '  That  the  word  '•  Liverpool  "  be  omitted.' 

This  was  agreed  to  unanimously. 

By  Mr.  Atkinson  :  '  That  the  word  "  quality  "  be  inserted  after 
the  word  "  weight  "  in  the  phrase  "  weight  and  contents  unknown."  ' 

The  amendment  was  agreed  to  unanimously. 

By  Mr.  Snape:  '  That  the  words  "  within  reasonable  time,"  be 
inserted  after  the  word  "expense,"  in  clause  11.' 

The  amendment  having  been  seconded  by  Dr.  Tomkins,  was 
agreed  to  without  voting. 

Finally,  it  was  moved  by  Mr.  Shotton,  and  seconded  by  Mr. 
Atkinson  :  '  That  the  draft  bill  of  lading  so  amended  be  adopted 
by  this  conference.' 

The  resolution  was  agreed  to  unanimously  amid  prolonged 
applause. 

The  following  is  a  copy  of  the  bill  of  lading  as  adopted  :  — 

Shipped,  in  apparent  good  order  and  condition,  by  in 

and  upon  the  good  steam  ship  called  the  now  lying  in  the 

port  of  and  bound  for  with  liberty   to  call  at  any 

ports,  in  any  order,  to  sail  without  pilots,  and  to  tow  and  assist 
vessels  in  distress,  and  to  deviate  for  the  purpose  of  saving  life  or 
property  ;  also  with  liberty,  in  case  the  ship  shall  put  into  a  port  of 
refuge  for  repair,  to  tranship  the  goods  to  their  destination  by  any 
other  steamer  (vessel)  ;  and  with  liberty  to  convey  goods  in  lighters 
to  and  from  the  ship,  at  shipper's  risk.  Such  lighterage  to  be 
at  ship's  exponse.  except  that  if  the  cargo  is  necessarily  landed  in 


380  MAKUl.ME   LEGISLATION. 

ligliters,  tlie  .sliip  being  unable  to  reach  the  port  of  destination,  the 
cost  of  such  lighterage  shall  fall  on  the  cargo 

being  marked  and  numbered  as  per  margin  ;  and  to  ba  delivered 
in  the  like  good  order  and  condition  at  the  aforesaid  port  of 

The  act  of  God,  perils  of  the  sea,  fire,  barratry  of  the  master  and  crew, 
enemies,  pirates  and  thieves,  arrest  and  restraint  of  princes,  rulers,  and 
peoi^le,  collisions,  stranding,  and  other  accidents  of  navigation,  excepted, 
even  when  occasioned  by  the  negligence,  default,  or  error  in  judgment  of  the 
pilot,  master,  mariners,  or  other  servants  of  the  shipowners. 

Ship  not  answerable  for  losses  through  cxidosion,  hursting  of  boilers, 
breakage  of  shafts,  or  any  latent  defect  in  the  machinery  or  hull,  not  re- 
sulting from  want  of  due  diligence  by  the  owners  of  the  ship  or  any  of  them, 
or  by  the  ship's  husband  or  manager ;  nor  for  decay,  putrefaction,  rust, 
sweat,  change  of  character,  drainage,  or  leakage,  arising  from  the  nature  of 
the  goods  shipped  or  the  insufliciency  of  the  packages  ;  nor  for  any  damage 
or  loss  occasioned  by  the  prolongation  of  the  voyage  ;  nor  for  obliteration  or 
absence  of  marks,  numbers,  addresses,  or  descriptions  of  goods  shipped. 

unto  or  to  his  or  their  assigns,  freight,  primage  and 

charges  for  the  said  goods,  as  per  margin,  to  be  paid  on  delivery 
by  .     Freight  to  be  paid  in  cash,  without  discount,  at 

the  rate  of  exchange  for  banker's  bills  at  sight,  current  on  the  day 
of  the  ship's  entry  inwards  at  the  custom-house.  General  Average 
payable  according  to  York-Antwerp  Rules. 

In  witness  thereof,  the  master  or  agent  of  the  said  ship  hath 
aflirmed  to  three  bills  of  lading,  all  of  this  tenor  and  date  (drawn 
as  first,  second,  and  third),  the  first  of  which  bills  being  accom- 
])lished,  the  others  to  stand  void. 

1.  Quality -marks,  if  any,  to  be  of  the  same  size  as  and  contiguous  to  the 
leading  marks  ;  and  if  inserted  in  the  shipping  notes  accepted  by  the  mate, 
the  master  is  bound  to  sign  bills  of  lading  conformable  thereto. 

2.  Ship  not  liable  for  breakage  of  glass,  earthenware,  or  china. 

y.  Not  accountable  for  goods  of  any  description  which  are  above  llie  value 
of  lOOL  per  package,  milcss  the  value  be  herein  expressed  and  a  special 
agreement  made  ;  nor  for  gold,  silver,  bullion,  specie,  documents,  jewellery, 
pictures,  embroideries,  or  works  of  art,  silks,  furs,  china,  watches,  or  clocks, 
unless  bills  of  lading  are  signed  therefor,  with  tlie  value  therein  expressed, 
and  a  special  agreement  be  made. 

4.  Shippers  accountable  for  any  loss  or  damage  to  ship  or  cargo  caused 
by  inflammable,  explosive,  or  dangerous  goods,  shipped  without  fuU  disclosure 
of  their  nature,  whether  such  shipper  shall  have  been  aware  of  it  or  not,  and 
whether  such  shipper  be  principal  or  agent ;  such  goods  may  be  thrown  over- 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  ;181 

board  or  destroyed  l\v  the  master  or  owner  of  the  sliii)  at  any  time  witliont 
compensation. 

5.  All  fines  or  damages  whicli  the  sliip  or  cargo  may  incur  or  suffer  Ijy 
reason  of  incorrect  or  insufVicient  marking  of  packages  or  description  of  their 
contents,  shall  he  paid  by  tlie  sliipper  or  consignee,  and  the  ship  shall  have 
a  lien  on  the  goods  of  such  shipper  or  consignee  for  the  amount  tliereof. 

6.  Goods  delivered  to  the  ship,  whilst  on  quay  awaiting  sliipment,  to  1)0 
at  shipper's  risk  as  regards  all  the  perils  excepted  in  this  bill  of  lading. 

7.  Goods  once  shipped  cannot  be  taken  away  by  the  shipper  except  npon 
payment  of  full  fi-eight,  together  with  the  expenses  of  landing  them,  and 
compensation  for  any  damages  sustained  by  the  owners  through  such  taking 
away. 

8.  In  case  the  ship  shall  be  i)revented  from  reacliing  her  destination  by 
quarantine,  blockade,  ice,  or  the  hostile  act  of  any  Power,  the  master  or 
owners  may  discharge  the  goods  into  any  depot  or  lazaretto,  or  at  any  near 
available  port ;  all  expenses  thereby  ineuiTcd  upon  the  goods  to  be  borne  by 
the  owners  or  receivers  thereof. 

9.  Ship  to  have  a  lien  on  all  goods  for  payment  of  freight  and  charges, 
including  back  freight,  demuiTage,  forwarding  charges,  and  charges  for 
carriage  to  port  of  shipment,  whether  payable  in  advance  or  not. 

10.  If  the  ship  is  able  to  carrj-  the  goods  to  their  destination,  but  the  goods, 
by  reason  of  damage  sustained  or  of  their  own  nature,  are  not  fit  to  be  carried 
all  the  way,  and  if  such  goods  have  received  an  enhancement  of  value  by 
reason  of  their  partial  carriage,  the  ship  shall  be  entitled  to  a  jiro  rata 
freight  in  proportion  to  the  distance  performed,  which  freight  is  in  no  case 
to  exceed  the  amount  of  such  enhancement  of  value.  Pro  rata  freight  is 
admissible  in  no  other  case  than  that  dealt  with  in  the  preceding  sentence, 
imless  there  be  an  acceptance  of  the  goods  by  the  shipper  or  owner  of  the 
goods. 

11.  When  the  goods  are  fit  to  be  carried  to  their  destination,  but  the  ship 
is  unable  to  carry  them,  the  shipowner  may  earn  full  freight  by  sending  the 
goods  to  their  destination  at  his  own  expense  within  reasonable  time  in 
another  bottom  :  this  right  is  not  affected  by  an  abandonment  of  the  ship 
by  her  crew,  or  to  the  miderwriters  :  and  the  ship  is  to  be,  for  this  purpose, 
deemed  unable  to  carry  the  goods  to  their  destmation,  if  she  either  cannot 
be  repaii'ed  at  aU,  or  cannot  be  repaired  except  at  an  expense  exceeding  her 
value  when  repaired. 

12.  FuU  freight  is  due  on  damaged  goods. 

13.  No  fi-eight  is  due  on  any  increase  in  bulk  or  weight  caused  by  the 
absorption  of  water  during  the  voyage. 

14.  To  the  extent  of  the  value  of  the  lien,  freight  which  by  the  terms  of 
the  bill  of  lading  is  made  payable  by  the  consignee  cannot  be  demanded 
from  the  shipper,  after  the  master  has  parted  with  his  lien  on  the  goods. 

15.  The  goods,  if  not  taken  by  the  consignee  immediately  on  landing,  or 
within  such  further  time  as  is  provided  by  the  regulations  of  the  port  of  dis- 
charge, may  be  stored  by  the  master,  at  the  expense  and  risk  of  the  owner  of 
the  goods.  The  master  shall  be  entitled  to  recover  from  the  shipper  the 
difference  between  the  amount  of  freight  stipulated  in  the  bill  of  lading  and 
the  proceeds  of  the  goods,  should  the  consignee  neglect  or  refuse  to  receive 
the  same. 


382  MARITrME   LEGISLATION. 

16.  In  the  event  of  claims  for  short  delivery,  when  the  ship  reaches  her 
destination  the  price  to  be  the  market  price  at  the  port  of  destination  on  the 
day  of  the  ship's  reporting  at  the  custom-house,  less  all  charges  saved. 

Notice. In  accepting  this  bill  of  lading,  the  owner  of  the 

goods  and  the  shipper  expressly  accept  and  agree  to  all  its  stipu- 
lations and  conditions,  whether  written  or  printed. 

Dated  in  ,  this  day  of  188. 

Weight,  quality,  and  contents  unknown. 
(The  words  printed  in  italics  are  to  be  omitted  in  the  case  of  sailing  shijjs.) 

The  following  is  the  report  on  the  form  of  bill  of  lading  for 
steamships,  proposed  by  the  Committee  of  the  New  York  Produce 
Exchange : — 

The  proposed  bill  of  lading  is  based  upon  the  form  adopted  last 
August  at  the  '  Conference  of  the  Association  for  the  Reform  and 
Codification  of  the  Law  of  Nations,'  but  differs  from  its  model  in 
many  important  respects. 

The  '  Conference '  bill  of  lading,  although  far  from  being  a 
perfect  instrument  in  the  sense  that  under  its  provisions  '  the 
shipper  of  goods  between  the  shipowner  and  the  underwriter  will 
be  kept  harmless  from  all  risks  except  those  of  the  market,'  is  still 
immeasurably  superior  in  the  protection  it  aifords  to  shippers,  in 
these  respects,  to  any  of  those  now  issued  by  the  great  steamship 
lines.  The  modifications  that  we  suggest,  we  believe,  will  be  more 
likely  to  secure  for  it  the  approval  of  underwriters,  and  thus  afford 
the  full  protection  that  shippers  are  entitled  to. 

We  propose  to  show,  by  a  comparison  of  the  '  Conference '  bill 
of  lading  with  tlioso  now  in  use  in  the  Atlantic  export  trade, 
wherein  its  provisions  ai-e  more  favourable  to  the  shipper,  and  to 
point  out  the  changes  that  we  suggest,  aiul  our  reasons  for  so 
doing. 

■In  the  very  first  sentence,  '  Sliipix'd  in  apparent  good  .order, 
we  find  a  fjiialificat  ion  infroduccd  wliicli  a  number  of  bills  of  lading 
nDW  in  use  do  not  conlain.      Dni    of  iliii-ly-six  l)i]Is  of  lading  exa- 


INTERNATIONAL  LAW   OF  AFFREIGHTMENT.  383 

mined  by  us,  only  fifteen  use  the  adjective  '  apparent.'  It  is 
evident,  however,  that  any  acknov^^ledgment  of  the  condition  of 
the  goods  wliiili  describes  them  as  being  '  in  good  order,'  must  be 
based  on  their  external  appearance,  and  therefore  we  do  not  con- 
sider the  addition  of  this  word  as  material,  and  have  retained  it  in 
our  proposed  form. 

The  liberty  to  '  call  at  any  ports  in  any  order '  would  give  as 
wide  a  liberty  of  deviation  as  any  bill  of  lading  now  in  use  provides 
for,  and  would  not  be  covered  l)y  any  ordinary  policy  of  insurance 
witliout  express  agreement. 

The  various  liberties  now  claimed  by  the  steamship  lines  are  as 
follows  : — 

Norfh  German  Lloyd. — '  With  liberty  to  call  at  any  intermediate 
port.' 

Ilamhurg  Am.  Vh.  Comjvj. — '  No  liberty  at  all.' 

Ounard  Line. — '  With  liberty  to  call  at  any  port,  or  ports,  to 
receive  fuel,  to  load  or  discharge  cargo,  or  for  any  other  piirpose 
whatsoever.' 

White  Star. — '  With  liberty  to  call,'  &c.,  exactly  as  above. 

Lnman  Line. — '  To  call  at  any  intermediate  port  for  any  pm-- 
pose.' 

National  Line. — '  To  have  liberty  to  call  at  an)-  port  or 
ports.' 

Anchor  Line.,  Glasgow  sere  ice. — '  With  liberty  during  the  voyage 
to  call  at  any  port,  or  ports,  to  receive  fuel,  to  load  or  discharge 
cargo,  or  for  any  other  purpose  whatsoever.' 

Aiichor  Line,  LAverjpool  service. — '  With  liberty  to  call  at  any 
intermediate  port  for  any  purpose.' 

Anchor  Line,  Bristol  service. — '  With  liberty,'  &c.,  as  per  Glas- 
gow service. 

Guion  Line. — '  No  liberty  at  all.' 

Monarch  Line. — '  To  call  at  any  intermediate  port  or  ports  for 
any  purpose.' 

ComjJarjnie  Genl.  Trans-Atlantique. — '•  With  liberty  to  call  at 
any  intermediate  ports.' 

Wihon  lAne. — 'No  liberty  at  all.' 

Great  IVesfern  Line. — 'With  liberty  during  the  vovagfe  to  call 


384  MAIUTIME    LF.GISLATIOX. 

at  any  port,  or  ports,  to  receive  fuel,  to  load  or  discharge  cargo,  or 
for  any  purpose  whatsoever.' 

State  Line. — '  With  liberty,'  &c.,  as  Great  Western  Line. 

Fed  Star  Line,  Antwerp. — '  To  call  at  any  intermediate  port.' 
White  Cross  Line. — 'To  call  at  any  port  or  ports,'  &c.,  as  per 
Great  Western  Line  and  others. 

Thingvalla  Line. — '  To  call  at  any  port  or  ports,'  &c.,  as  above. 

Netherlands'  American. —  'To  call  at  any  port  or  ports,'  &c.,  as 
above. 

Bordeaux  Line,  Fundi,  Edi/e  &  Co. — '  To  call  at  any  port  or 
ports,'  &c.,  as  above. 

Royal  Netlierland. — '  To  call  at  any  port  or  ports,'  &c.,  as 
above. 

Taurus  Line. — 'To  call  at  any  port  or  ports,'  &c.,  as  above. 

Merchants'  Line,  Neu)  Yorh  to  Havre. — '  To  call  at  any  port  or 
ports,'  &c.,  as  above. 

Farness  Line. — '  To  call  at  any  port  or  ports,'  &c.,  as  above. 

Centaur  Line. — '  To  call  at  any  port  or  ports,'  &c.,  as  above. 

Cambrian  Line. — '  To  call  at  any  port  or  ports,'  &c.,  as  above. 

Arrou'  Line. — '  To  call  at  any  port  or  ports,'  &c.,  as  above. 

Bristol  Line. — '  To  call  at  any  port  or  ports,'  &c.,  as  above. 

Edu-ards  Line. — '  No  liberty  at  all.' 

Red  Cross  Line. — '  With  liberty,  before  shipment  or  at  any 
period  of  the  voyage,  and  so  often  as  may  be  deemed  expedient  or 
at  anv  port  or  place,  to  ship  the  whole  or  part  by  any  other  steamer 
(whether  belonging  to  the  owners  of  the  said  steamship  or  not),  to 
tranship  or  land  or  store  or  put  into  hulk  or  craft  for  such  time  as 
may  be  deemed  expedient,  and  thence  re-ship  on  any  other  steamer, 
whether  belonging  to  the  owners  of  the  said  steamship  or  not,  and 
with  liberty  for  the  said  steamer  or  substituted  steamer  or  steamers 
to  proceed  to  or  stay  at  any  ])orts  or  places  whatsoever  on  the 
coasts  of  Great  Britain  or  L'eland,  or  on  the  continent  of  Europe 
or  Africa,  or  the  islands  of  the  Atlantic,  whether  in  or  out  of  the 
customaiy  or  advertised  route,  in  any  rotation  and  for  any  purpose 
whatsoever.' 

Tlif  steamers  of  the  Red  Cross  Line  are  no  longer  running  in 
til'-   Allatitir-    triidf.   and   this   document  has    therefore  rather  an 


TXTi:iiNATIONAL    LAW    OF   AFFIM'JdllT.Ml^NT.  aso 

historic  than  a  practical  vaUie.  Wc  reproduce  it  to  show  liow  fur 
the  sliipovvners  may  endeavour  to  exempt  themselves  from  liability 
if  unchecked  by  united  action  on  the  part  of  shippers. 

We  suggest  as  a  proper  modilicatiou  of  the  clause,  'with  liberty 
to  call  at  any  ports  in  any  order,'  the  words,  '  with  liberty  to  call 
at  any  intermediate  ports.' 

The  next  clause,  '  To  sail  without  pilots,  and  to  tow  and  assist 
vessels  in  distress,  and  to  deviate  for  the  purpose  of  savino-  life  or 
property,'  is,  with  slight  verbal  modifications,  contained  in  all  l)ills 
of  lading  now  used  by  steamers.  We  have  retained  tliis  clause  for 
the  following  reasons  : — 

It  is  the  invariable  rule  for  steamships  to  take  pilots,  the  liberty 
of  not  doing  so  being  only  used  in  exceptional  cases. 

The  shipowner  needs  no  permission  '  to  tow  and  assist  vessels 
in  distress,  or  to  deviate  for  the  purpose  of  saving  life  ; '  for  the 
former  is  already  granted  by  established  custom,  and  the  latter  is 
provided  for  by  the  law  of  every  civilised  country.  Deviation  to 
save  property  only,  however,  as  in  the  case  of  towing  an  abandoned 
ship  into  port,  will  forfeit  any  policy  of  insurance,  unless  as  before 
stated,  in  regard  to  the  '  liberty  to  call  at  any  port  or  ports  '  it  is 
provided  for  by  express  stipulation. 

The  law  on  this  subject  is  clearly  laid  down  by  Chief  Justice 
Cockburn  in  Scaramanga  v.  Stamp  (Law  Reports,  5  C.  P.  D.  316). 
The  Chief  Justice  gives  the  resnlt  of  the  American  authorities, 
viz. : — 

'  Deviation  for  the  purpose  of  saving  life  is  protected,  and  in- 
volves neither  forfeiture  of  insurance  nor  liability  to  the  goods' 
owner  in  respect  of  loss  which  would  otherwise  be  within  the  ex- 
ception of  "perils  of  the  seas."  And  as  a  necessary  consequence 
of  the  foregoing,  deviation  for  the  purpose  of  communicating  with 
a  ship  in  distress  is  allowable,  inasmuch  as  the  state  of  the  vessel 
in  distress  may  involve  danger  to  life.  On  the  other  hand,  devia- 
tion for  the  sole  purpose  of  saving  property  is  not  thus  privileged, 
but  entails  all  the  usual  consequences  of  deviation.  If,  therefore, 
the  lives  of  the  persons  on  board  a  disal^led  sliip  can  be  saved  with- 

C  (J 


380  ^r.vrJTIME    T.EGISLATION. 

out  saving  the  ship,  as  by  taking  tlieni  oft',  deviation  for  the  purposp 
of  saying  the  ship  will  carry  with  it  all  the  consequences  of  an  un- 
authorised deviation.  But^  where  the  preservation  of  life  can 
only  be  effected  through  the  concurrent  saving  of  property,  and 
the  bond  fide  purpose  of  saving  life  forms  part  of  the  motive  which 
leads  to  the  deviation,  the  privilege  will  not  be  lost  by  reason  of 
the  purpose  of  saving  property  having  formed  a  second  motive  for 
deviatino-.'  In  these  propositions  Chief  Justice  Cockburn  entirely 
concurs,  and  continues  : — 

'There  would  be  much  force,  no  doubt,  in  the  argument  that 
it  is  to  the  common  interest  of  merchants  and  insurers,  as  well  as 
of  shipowners,  that  ships  and  cargoes,  when  in  danger  of  perishing, 
should  be  saved ;  and,  consequently,  that,  as  a  matter  of  policy,  the 
same  latitude  should  be  allowed  in  respect  of  saving  property  as  in 
the  respect  of  the  saving  of  life,  were  it  not  that  the  law  has  pro- 
vided another  and  a  very  adequate  motive  for  the  saving  of  property 
by  securing  to  the  salvor  a  liberal  proportion  of  the  property  saved 
— a  proportion  in  which  not  only  the  value  of  the  property  saved 
but  also  the  danger  run  by  the  salvor  to  life  or  property,  is  taken 
into  account,  and  in  calculating  which,  if  it  be  at  once  settled  that 
the  insurance  will  not  be  protected,  nor  the  shipowner  freed  from 
liability,  in  respect  of  loss  of  cargo,  the  risk  thus  run  will,  no 
doubt,  be  included  as  an  element.' 

We  cannot  help  thinking  that  it  would  be  for  the  interest  of 
underwriters  to  extend  the  liberty  of  deviation  to  the  saving  of 
property  as  well  as  of  life,  since  by  so  doing  claims  for  salvage  in 
.such  cases  would  be  materially  reduced. 

We  have  retained  the  clause,  'with  liberty,  in  case  the  ship 
shall  put  into  a  port  of  refuge  for  repairs,  to  tranship  the  goods 
to  their  destination  by  any  other  steamer,'  because  it  has  been,  for 
many  years  past,  approved  by  underwriters  as  being  for  the  general 
benefit  of  all  concerned.  We  have  modified  the  clause, '  with  libert}'- 
to  convey  goods  in  lighters  to  and  from  the  ship  at  shippers'  risk. 
Such  lighterage  to  be  at  ship's  expense,'  b}^  omitting  the  concluding 
sentence,  'except  tlmt  iftlx'  cargo  is  necessarily  laiulcd  in  lighters, 
the  ship  being  unable  to  reach  the  port  of  destination,  the  cost  of 
such  lighterage  sliall  fall   on  cargo;'  because  this  is  fully  provided 


IXTERNATIONAL   LAW   OF   AFFREIGIITMEXT.  387 

for  afterwards  in  soction  8  of  the  '  Conferenco  '  bill  of  lading;   in 
our  form,  section  7. 

The  morst  important  clause  in  all  l)illsof  lading  is  that  in  which 
the  shi[)owner  describes  the  p-rils  and  accidents  from  which  he 
claims  exemption.  The  '  Conference '  bill  of  lading  is  in  this,  as 
in  all  other  respects,  more  moderate  than  any  of  those  in  present 
use  ;  but,  in  our  opinion,  requires  still  further  limitation.  Its  terms 
are  as  follows  : — 

'  The  act  of  God,  perils  of  the  sea,  fire,  barratry  of  the  master 
and  crew,  enemies,  pirates  and  thieves,  arrest  and  restraint  of 
princes,  rulers  and  people,  collisions,  stranding  and  other  accidents 
of  navigation  excepted,  even  when  occasioned  by  the  negligence, 
default  or  error  in  judgment  of  the  pilot,  master,  mariners,  or 
other  servants  of  the  shipowners.  Ship  not  answerable  for  losses 
through  explosion,  bursting  of  boilers,  breakage  of  shafts,  or  any 
latent  defect  in  the  machinery  or  hull  not  resulting  from  want  of 
due  diligence  by  the  owners  of  the  ship,  or  any  of  them,  or  by  the 
ship's  husband  or  manager.' 

This  clause  we  propose  to  modify  as  follows  :  '  The  perils  of  the 
seas,  fire,  barratry  of  the  master  and  crew,  enemies,  pirates,  assail- 
ing thieves,  arrest  and  restraint  of  princes,  rulers  and  peoples  ex- 
cepted. Ship  not  answerable  for  losses  by  collisions,  stranding  and 
other  accidents  of  navigation,  even  when  occasioned  by  the  neo-li- 
gence,  default  or  error  in  judgment  of  the  pilot,  master,  mariners, 
or  other  servants  of  the  shipowner  ;  nor  for  losses  through  explosion, 
bursting  of  boilers,  breakage  of  shafts,  or  any  latent  defect  in  hull 
or  machinery,  not  resulting,  in  either  case,  from  want  of  due  dili- 
gence by  the  owners  of  the  ship,  or  any  of  them,  or  by  the  ship's 
husband,  or  manager.' 

The  bills  of  lading  in  present  use  contain  exemptions  in  addi- 
tion to  those  made  in  the  '  Conference  '  bill  of  ladino-  viz  • 

North  German  Lloyd's. — '  Robbers,  vermin,  jettison.' 
Hamburg  Am.  Facl-et  Co.—'  Robbers,  vermin,  jettison.' 
Cunard. — '  Robbers,  vermin,  rain,  stowage  or  contact  with,  or 
smells  or  evaporation  or  taint  or  breakage  from,  other  goods,  negli- 
gence, default  or  error  in  judgment  of  stevedores.' 


383  :^rArxITIME   LEGISLATION. 

White  Star.— '  Hohhers,  vermin,  rain,  or  from  stowage  or  con- 
tact with,  or  smells  or  evaporation  or  taint  from  other  goods.' 

Inman. '  Thieves  of  whatever  kind,  whether  on  board  or  not, 

vermin,  riots,  strikes,  lock-outs  or  stoppage  of  labour  from  what- 
ever cause  rain,  spray,  stowage  or  contact  with,  or  smell  or 
evaporation  or  breakage  from,  other  goods,  jettison,  or  for  unsea- 
worthiness of  the  ship  at  the  comm.encem.ent  of  the  voyage.' 

National. — '  Thieves  by  land  or  at  sea,  vermin,  rain,  spray,  coal 
or  coal  dust,  stowage  or  contact,  &c.,  jettison,  fire  before  loading 
or  after  unloading,  heat.' 

Anclior  Line,  Glasgoiv  service. — '  Spray,  rain,  decay  or  damage 
bv  vermin,  stowage  or  contact  with,  &c.,  heat,  fire  on  shore.' 

Anchor  Line,  Liverj)ool  service. — '  Robbers,  thieves  of  whatever 
kind,  whether  on  board  or  not,  vermin,  riots,  strikes,  lock-outs  or 
stoppage  of  labour  from  whatever  cause,  rain,  spray,  stowage  or 
contact  with,  &c.,  jettison,  heat,  fire  at  any  time  and  in  any  place, 
or  for  the  unseaworthiness  of  the  ship  at  the  commencement  of  the 
voyage.' 

Anchor  Line,  Bristol  service. — 'Rain,  spray,  decay  or  damage  by 
vermin,  stowage  or  contact  with,  &c.,  heat  or  fire  in  craft  or  hulk 
or  on  shore.' 

Gnioii  Line. — '  Vermin,  stowage,  or  contact  with  other  goods, 
fire  in  craft  or  on  shore.' 

Monarch. — 'Robbers,  vermin,  pilferage,  rain,  spray,  contact 
with  or  smell  or  evaporation  from  other  goods,  jettison,  heat,  fire 
at  any  time  or  in  any  place,  losses  at  the  port  of  discharge.' 

Comj^agnie  Gen.  Trans- Atlantique. — '  Robbers,  rats  or  vermin, 
rain,  spray  or  contact  with  other  goods,  &c.,  heat,  fire  at  sea  or  on 
shore.' 

Wilson. — '  Robbers,  vermin,  rain,  spray,  loss  or  damage  or  con- 
tact with,  or  smell  or  evaporation,  &c.,  fire  in  craft  or  hulk  or  on 

shore. 

Great  Western. — '  Robbers,  vermin,  stowage,  or  contact  with,' 

&;c. 

State. — '  Rain,  spray,  decay,  or  damage  by  vermin,  stowage,  or 
contact  with,  &c.,  lieat  or  firc^  in  craft  or  hulk  or  on  shore.' 

lied  Star. — 'Robbers,  vonnin,  rain,  sjiray,  loss  or  damage  from 


INTEKNATIONAL    LAW    OF    A  FFUEIGIITiMENT.  389 

stowage,  or  contact  with,  &c.,  lieut  or  fire  in  craft  or  liuliv  or  on 
shore,  either  before  hiding  or  ailer  unlading.' 

While  Cro6{i. — '  Jiohbers,  vermin,  stowage,  or  contact  with  other 
goods.' 

TlitnjcaUa. — '  Robbers,  vermin,  stowage,  or  contact,'  &c. 

Nethedaads. — '  Robbers,  vermin,  stowage,  or  contact,  &c.,  fire 
in  craft  or  on  shore  before  lading  or  after  unlading.' 

Bordelaiso. — '  Robbers,  vermin,  stow^age,  or  contact,  &c.,  fire  in 
craft  or  on  shore.' 

lloi/al  Netherlands. — *  Robbers,  vermin,  stowage,  or  contact,  &c., 
fire  in  craft  or  on  sliore,  before  lading  or  after  unlading,' 

Taurus. — '  Robbers,  vermin,  stowage,  or  contact,  &c.,  disease 
(of  cattle),  want  of  space,  air  or  water,  fire  in  craft  or  on  shore, 
before  lading  and  after  unlading.' 

Merchant's  Ex. — '  Robbers,  vermin,  stowage,  or  contact,  &c., 
fire  on  sliore  or  in  craft.' 

Furness  Line. — '  Robbers,  vermin,  rain,  stowage,  or  contact,  &c,, 
fire  in  craft  or  hulk  or  on  shore.' 

Centaur. — '  Robbers,  vermin,  stowage,  or  contact,  &c.,  fire  in 
craft  or  hulk  or  on  shore.' 

Cambrian. — '  Robbers,  vermin,  contact  with,  &c.,  heat  or  fire  in 
craft  or  bulk  or  on  shore.' 

Arrow. — '  Robbers,  vermin,  rain,  spray,  contact  with,  &c.,  fire 
in  craft  or  hulk  or  on  shore.' 

Bristol  City. — '  Robbers,  vermin,  stowage,  or  contact,  &c., 
fire  in  craft  or  hulk  or  on  shore,  before  lading  and  after  un- 
lading.' 

Edwards  Line. — '■  Fire  on  shore.' 

Red  Cross. — '  Robbers,  thieves  of  whatever  kind,  whether  on 
board  or  not,  effects  of  climate,  heat  of  hold,  vermin,  rain  or 
spray,  all  injury  arising  from  other  goods  by  stowage,  or  contact 
with,  or  sweating,  leakage,  smell,  or  evaporation  from  steam  or 
otherwise  howsoever,  heat,  fire  at  any  time  and  in  any  place  what- 
ever, jettison,  or  unseawortliiness  of  the  ship  at  the  commence- 
ment of  the  voyage,'  &c. 

We    have  omitted  from  the  excepted  perils;,  the  phrase,  '  act 


3.90  MAKITIME    LKGLSLA'l  lOX. 

of  God."  It  is  trne  that  these  woicls  liave  a  clearly  defined  legal 
meaning.  Storv  says  :  '  By  the  act  of  God,  a  phrase  which  per- 
haps habit  has  rendered  too  familiar,  is  meant  inevitable  accident 
or  casualty.'  But  as  the  succeeding  phrase,  '  perils  of  the  sea," 
is  wide  enough  to  cover  '  inevitable  accident  and  casualty,'  we 
consider  the  omitted  words  superfluous. 

It  is  well  understood  that  '  barratry  of  the  master '  is  not 
covered  by  American  policies  when  he  is  sole  or  part  owner  of 
the  ship,  even  when  it  concerns  innocent  shippers  of  cargo ;  but 
this  fact  is  of  little  practical  importance  to  shippers  by  steam,  and 
can  easily  be  provided  for  by  insurance  in  other  cases.  So,  also, 
can  losses  arising  '  from  enemies  and  pirates  and  restraints  of 
princes,  rulers  and  peoples.'  We  have  added  the  adjective 
'assailing'  before  thieves,  in  conformity  with  the  common  law 
doctrine,  which  declares  '  that  shipowners  are  responsible  for 
theft  by  their  servants,  or  by  others  in  their  employ  and  confi- 
dence, or  under  their  protection,  but  not  for  theft  committed  with 
armed  force  or  other  superior  power  '  ('  Story  on  Bailments  ').  The 
exemption  of  liability  of  the  shipowner  for  losses  directly  occa- 
sioned by  stranding,  collision  and  other  accidents  of  navigation, 
even  when  occasioned  by  the  negligence,  default  or  error  in  judg- 
ment of  the  servants  of  the  shipowner,  is  now  being  tested  in 
the  United  -States  District  Court,  in  Brooklyn,  by  a  suit  brought 
by  the  Insurance  Company  of  North  America,  and  the  Phoenix 
Insurance  Company,  of  Brooklyn,  against  the  AVilliams  and  Guion 
Line,  to  recover  a  loss  paid  by  these  companies,  occasioned  by  the 
alleged  negligence  of  the  master  of  the  'IMontana.'  The  common 
law  doctrine  on  this  subject  is  stated  by  Story  as  follows  :  '  A  loss 
from  a  peril  of  the  sea  which  might  have  been  avoided  by  the 
exercise  of  any  reasonable  skill  or  diligence  at  the  time  when  it 
occurred,  is  not  deemed  to  be  such  a  loss  by  the  perils  of  the  sea 
as  will  exempt  the  carrier,  but  rather  a  loss  by  the  gross  negligence 
of  the  party.'  Justice  Bradley,  in  Railroad  r.  Lockwcod,  held  that 
*  it  is  not  just  and  reasonable  in  the  eye  of  the  law  for  a  common 
can-ier  to  sti])ulate  fur  cxcn  jit  ion  fioin  icsp.onsibility  lor  the  ncgli- 
gi-iK-f  f)f  his  scrvaiils." 

In  l'"raiK('.  Sjijiiii.  Holland.  Sr<  llaiid,  Loui^iaii;i.  and  the  (JeiMiiaii 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  ?M 

States,  the  carrier  is  respousihlt;  for  (UuuMg'e  caused  by  his  servants. 
Story  states,  liowever,  that  the  rigour  of  tlie  couniiou  law  in  this 
respect  has  been  rehixed  in  I'highind  by  statutes,  &c.,  but  that  none 
of  the  statutes  have  been  generally  adopted  in  tliis  country,  and, 
with  the  exception  of  some  legislative  provisions  in  a  few  States, 
the  connnon  law  prevails. 

Mr.  Lowndes  boldly  argues  in   his  pamphlet,  '  On  a  common 
form  of  bill  of  lading,'  '  That  there  has  been  growing  up  in  the 
minds  of  steamship  owners  a  conviction  that  there  must  be  one 
radical  change  in  the  old  common  law  of  the  sea;  that  the  ship- 
owner can  no  longer  undertake  to  be  answerable  for  the  faults  or 
neglects  of  the  master  or  crew.     It  is   enough,'  he  says,  'if  he 
man    her   with    a   crew    sufficient  in   number  and    competent  in 
quality,  so  far  as  competency  can  be   ascertained  beforehand,  and 
with  a  master  and  officers  who  have  obtained  certificates  of  com- 
petency required  by  law.     To    undertake    that  these   men    shall 
always  do  their  duty,  and  in  the  course  of  a  long  voyage  shall 
never  once  be    guilty  of  neglect  or  mistake   that    shall   have   a 
mischievous  result,  involves  a  liability  which  they  do  not  care  to 
undertake.     It  is  no  exaggeration,'  he  continues,  '  to  say  that  if 
not  all,  certainly  the  great  majority  of  accidents  to  steamers  are 
traceable  to  the  fault  of  some  seaman  or  engineer.     A  well-built 
steamer  is  powerful  to  resist  the  adverse  forces  of  nature ;  she  can 
hardly  spring  a  leak  in  any  gale,  and  her  engines  will  keep  her  ofi' 
a   lee   shore  ;    but  she  is  at  the  mercy  of  her  own  servants  :    a 
careless  engineer  or  stoker  neglecting  to  keep  up  the  water  in  the 
boilers    may  destroy  her  by  an    explosion ;    the    rapid  pace    and 
frequent  entrance  of  harbours  greatly  increase  the  risk  of  stranding 
and    collision,    each    mostly    traceable    to   a   sailor's    fault.'      Mr. 
Lowndes  goes  on  to  say  :  '  Now,  so  long  as  the  owners  of  steam- 
ships, speaking  of  them  as  a  body,  hold  this  conviction  so  strongly 
as  to  unite  in  refusing  to  carry  merchandise  on  any  other  terms,  it 
cannot  be  denied  that  they  are   acting  within  their  rights.     No 
one  is  bound  to  build  a  steamer,  or,  having  built  her,  to  allow 
some  one  else  to  send  goods  in  her  on  conditions  which  he  himself 
does  not  like,"  Sac. 

This  attitude  of  the  shipowners  is  only  to  be  met   by  a  com- 


392  MARITIMIC   LEGISLATIOX. 

Linatiou  of  the  shippers,  for  certainly  no  one  will  build  steain- 
sliips  except  with  the  intention  of  carrying  merchandise ;  and,  if 
the  shippers  unite  in  demanding  a  reasonable  protection  from  the 
carrier,  thev  will  be  likely  to  obtain  it ;  but  if,  without  union  for 
self-protection,  they  accept  any  bill  of  lading  which  the  steamship- 
owner  offers  them,  they  have  only  themselves  to  blame  if  they  are 
held  to  its  conditions.  In  our  opinion,  the  '  Conference  '  bill  of 
lading  should,  at  least,  be  modified  in  the  spirit  of  Mr.  Lowndes's 
remarks,  and  the  same  provision  should  be  applied  to  losses  occa- 
sioned indirectly  by  the  faults  of  the  servants  of  the  shipowner, 
as  has  been  applied  to  those  occasioned  by  exjjlosion,  bursting  of 
boilers,  breakage  of  shafts,  or  any  latent  defect  in  hull  or  machinery. 
And  we  have,  accordingly,  added  the  clause,  '  not  resulting  in 
either  case  from  want  of  due  diligence  by  the  owners  of  the  ship, 
or  any  of  them,  or  by  the  shijo's  husband  or  manager.'  Even  with 
this  modification  the  shipper  will  not  be  protected  by  insurance, 
unless  underwriters  also  agree  to  this  provision,  since  losses  arising 
from  the  negligence  of  master  and  other  servants  of  the  shipowner 
or  from  accidents  to  machinery  or  latent  defects  in  it,  or  in  the 
hull,  or  any  unseaworthiness,  are  not  covered  by  policies  of  insur- 
ance. 

The  remainder  of  the  clause  we  have  adopted  almost  as  it  stands 
in  the  '  Conference '  bill  of  lading,  changing  only  the  position  of 
one  phrase,  and  adding  to  the  exceptions,  '  breakage  and  land 
damage,  and  any  damage,'  so  that  it  now  reads  as  follows : — 

'  Nor  for  decay,  putrefaction,  rust,  sweat,  change  of  character, 
drainage,  leakage,  breakage,  land  damage,  or  any  damage  arising 
from  tlie  nature  of  the  goods  shipped  ;  nor  for  the  obliteration  of 
marks,  ji umbers,  addi esses,  or  descri]itions  of  goods  shipped  ;  nor 
lor  any  damage  or  loss  caused  by  the  prolongation  of  the  voyage.' 
The  whole  of  this  latter  clause,  however,  is  supei-fluous,  as  it  is 
well  settled  law  that  shipowners  are  not  liable  for  damage  resulting 
from  any  of  the  enumerated  causes. 

W'c  have  also  omitted  the  word  'primage'  which  occurs 
bt'twecn  tin-  woi'ds  '  freight  and  charges.'  It  fonnei'ly  reprc'sented 
the  master's  cojnniissioii  on  llie  freiglit.  l)ut  as  it  has  lung  since 
ceused  ♦<>  fl"  iliis.  it  is  no  lun;:"'  r  necessarv. 


INTERNATIONAL  LAW   OF   AFFREIC4HTMENT.  893 

The  clause  'General  Average,  payable  according  to  York- 
Antwerp  Rules,'  we  have  retained. 

The  affirmation  clause  we  have  only  modified  by  substituting 
the  words,  'one  of  which  bills  of  lading  being  accomplislied,'  for 
'  ihefrsl  of  wliicli,'  &c. 

Marginal  clause  No.  1,  as  to  quality  marks,  we  have  adopted 
as  it  stands. 

No.  2  we  have  omitted,  as  it  is  already  fully  provided  for  in 
the  body  of  the  instrument. 

No.  3,  which  we  make  No.  2,  we  have  modified,  viz. : — 

'Ship  not  accountable  for  gold,  silver,  Ijullion,  specie,  docu- 
ments, jewellery,  pictures,  embroideries,  or  works  of  art,  silks,  furs, 
china,  statuary,  watches  or  clocks,  unless  bills  of  lading  are  signed 
therefor,  with  the  value  therein  expressed.' 

No.  4,  in  our  form  No.  3,  is  made  to  read,  viz. : — 

'  Shippers  accountable  for  any  loss  or  damage  to  ship  or  cargo 
caused  by  inflammable,  explosive,  or  dangerous  goods,  shipped 
without  full  disclosure  of  their  nature,  whether  such  shipper  be 
principal  or  agent ;  such  goods  may  be  thrown  overboard  or  de- 
stroyed by  the  master  or  owner  at  any  time  without  compensation,' 
omitting  the  words  '  whether  such  shipper  shall  have  been  aware 
of  it  or  not.' 

No.  5,  which  we  make  No.  4,  is  retained  unaltered. 

No.  6,  with  us  No.  5,  we  have  modified  by  adding  the  words  : 
'  except  in  cases  where  such  goods  are  detained  awaiting  shipment 
for  the  convenience  of  the  shipowner.' 

No.  7,  in  our  form  No.  6,  is  adopted  without  change. 

No.  8,  with  us  No.  7,  is  retained  unaltered,  with  the  exception 
that  we  substitute  '  shipowners '  for  '  owners.' 

No.  9,  which  we  make  No.  8,  is  modified  by  the  omission  of 
tlie  concluding  phrase,  '  whether  payable  in  advance  or  not.'  If 
freight  is  paid  in  advance  there  can  certainly  be  no  lien ;  what  is 
probably  meant  is,  that  charges,  demurrage.  Sec.  are  to  be  a  lien 
when  the  ship's  freight  is  paid  in  advance,  but  the  phrase  is 
ambiguous  and  unnecessary. 

No.  10.  in  our  bill  of  lading  No.  0,  we  have  adopted  without 
alteration.     Jt    introduces   a    rule   as  to   distance   freight,   which, 


394  :\1A1UT1ME    LEGISLATION. 

altbougli  unknown  to  the  law  in  tliis  country  and  in  England,  i.s 
but  reasonable  and  just.  The  clause  as  to  '  enhancement  of  value  ' 
will  also  properly  modify  the  arbitrary  Continental  rule,  which  only 
looks  to  the  proportion  of  the  voyage  completed. 

Xo.  11.  in  our  form  No.  10,  we  have  also  adopted  without 
alteration.  It  is  already  provided  for  by  law  in  this  country,  but 
not  distinctly  so  in  Great  Britain.  The  rule  as  to  the  circumstances 
which  justify  abandonment  is  in  accord  with  English  law,  but 
differs  from  that  pi-evailing  in  this  country. 

Xo.  12  (11)  is  adopted  without  change.  It  is  a  well-settled 
rule  of  law,  although  in  many  cases  it  may  work  hardship  to 
shippers. 

Xo.  13  (12)  we  have  not  altered. 

Xo.  14  (13)  we  have  adopted  as  it  stands. 

Xo.  15,  which  in  our  form  is  Xo.  14,  reads  in  the  '  Conference ' 
bill  of  lading  as  follows,  viz.  : — 

'  The  goods,  if  not  taken  by  the  consignee  immediately  ou 
landing,  or  within  such  further  time  as  is  provided  by  the  regula- 
tions of  the  port  of  discharge,  may  be  stored  by  the  master  at  the 
expense  and  risk  of  the  owner  of  the  goods.  The  master  to  be 
entitled  to  recover  from  the  shipper  the  difference  between  the 
amount  of  freight  stipulated  in  the  bill  of  lading  and  the  proceeds 
of  the  goods,  should  the  consignee  neglect  or  refuse  to  receive  the 
same.' 

AVe  propose  the  following  modificatiou  : — 

'  If  the  goods  be  not  taken  by  the  consignee  immediately  on 
landing,  or  within  such  further  time  as  is  provided  by  the  regula- 
tions of  the  port  of  discharge,  they  may  be  stored  by  the  master 
at  the  expense  and  risk  of  their  owners  ;  provided  always,  that 
public  notice  is  given  of  the  arrival  of  the  ship  and  the  commence- 
ment of  the  discharge,  and  that  the  same  does  not  begin  at  night, 
or  at  any  unreasonable  liour.  The  master  to  be  entitled  to  recover 
from  fhe  shipper  the  difference  belween  the  amount  of  freight 
st ij)iil;it((l  loi-  ill  tlic  j)ill  (if  Ijiding  and  the  jiroceeds  of  the  goods, 
slioiild  the  consignee  neglect  or  refuse  to  receive  them.' 

The  fiiiiil  clause,  Xo.  10.  in  niii-  r<iriii  Xo.  lo.  is  adojited  without 
change. 


INTKUNATIONAL    LAW    OF   All- UKKiUTMENT.  895 

The  stipulation  tu  pay  for  goods  short  delivered,  at  the  uiark(-t 
price  at  port  of  destination,  is  fair  and  according  to  law,  and  is 
also  in  n)ai-ked  contrast  with  the  provision  in  many  bills  of  lading, 
'  that  the  shipowner  shall  only  be  liable  for  the  invoice  or  declared 
value  of  the  goods,  whichever  shall  be  the  least,' 

The  concluding  clause,  '  That  in  accepting  the  bill  of  lading, 
the  owner  of  goods  and  the  shipper  expressly  accept  and  agree  to 
all  its  stipulations,'  &c.,  we  have  adopted  without  modification  ; 
and,  also,  the  memorandum  '  weight,  quality,  and  contents  un- 
known. 

Samuel  A.  Sawyeh,  Chairman, 

A.  E.  Orr, 
David  Bingham, 

GUSTAV    SCHA\An, 
E,    R.    LiVERMORE, 

Silas  C.  Force, 
Charles  F.  Wreaks, 

Committee  on  Bills  of  Lading, 
New  York  :  May  1883. 


Form  of  Bill  of  Lading  proposed  by  the  Committee  of  the  New  York 
Produce  Exchange,  based  on  the  '  form  "  adopted  at  the  Confer- 
ence of  the  Association  for  the  Reform  and  Codification  of  the 
Law  of  Nations,  August  1882, 

Shipped,  in  apparent  good  order  and  condition  by 
in  and  upon  the  good  steamship  called  the  now  lying 

in  the  port  of  and  bound  for  with  liberty 

to  call  at  any  intermediate  ports,  to  sail  without  pilots,  to  tow  and 
assist  vessels  in  distress,  and  to  deviate  for  the  purpose  of  saving 
life  or  pro])erty ;  also  with  liberty,  in  case  the  ship  shall  put  into 
a  port  of  refuge  for  repairs,  to  tranship  the  goods  to  their  destina- 
tion by  any  other  steamship,  and  with  liberty  to  convey  goods  in 
lighters  to  and  from  the  ship  at  shipper's  risk,  but  at  ship's 
expense  being- 

marked  and  numbered  as  per  margin,  and  to  be  delivered  in  like 
good  order  and  condition  at  the  aforesaid  jwrt  of 


398  MAKITIME   LEGISLATION. 

The  perils  of  the  seas,  fire,  barratry  of  the  master  and  crew,  enemies, 
pirates,  assailing  thieves,  arrest  and  restraint  of  princes,  rulers  and  peoples 
excepted.  Ship  not  answerable  for  losses  by  collisions,  stranding  and  other 
accidents  of  navigation,  even  when  occasioned  by  the  negligence,  default  or 
error  in  judgment  of  the  pilot,  master,  mariners,  or  other  servants  of  the 
6hipo^\-ner ;  nor  for  losses  through  explosion,  bursting  of  boilers,  breakage  of 
shafts  or  any  latent  defect  in  hull  or  machinery  (not  resulting  in  either  case 
from  want  of  due  diligence  by  the  owners  of  the  ship,  or  any  of  them,  or  by 
the  sliip's  husband  or  manager)  ;  nor  for  decay,  putrefaction,  rust,  sweat, 
change  of  character,  drainage,  leakage,  breakage,  land  damage  or  any 
damage  arising  from  the  nature  of  the  goods  shipped  or  the  insufficiencj^  of 
packages  ;  nor  for  the  obliteration  of  marks,  niunbers,  adch'esses,  or  descrip- 
tion of  goods  shipjied ;  nor  for  any  damage  or  loss  caused  by  the  prolongation 
of  the  voyage. 

unto  or  to  his  or  their  assigns,  freight  and  charges  for 

tlie  said  goods,  as  per  margin,  to  be  paid  on  delivery  by 
freight  to  be  paid  in  cash,  without  discount,  and  if  in  a  foreign 
currency  at  the  rate  of  exchange  for  banker's  bills  at  sight,  current 
on  the  day  of  the  sliip's  entry  inwards  at  the  custom-house.    General 
Average  payable  according  to  York- Antwerp  Rules. 

Ix  Witness  whereof,  the  master  or  agent  of  the  said  ship  hath 
affirmed  to  three  bills  of  lading,  all  of  this  tenor  and  date,  one  of 
which  bills  being  accom^^lished,  the  others  to  stand  void. 

1.  Quality-marks,  if  any,  to  be  of  the  same  size  or  and  contiguous  to  the 
leading  marks ;  and  if  inserted  in  the  shipping  notes  accej)ted  by  the  mate, 
the  master  or  agent  is  bound  to  sign  bills  of  lading  conformable  thereto. 

'2.  Ship  not  accountable  for  gold,  silver,  bullion,  specie,  documents, 
jewellery,  pictures,  embroideries,  or  works  of  art,  silks,  furs,  china,  statuary, 
watches  or  clocks,  unless  bills  of  lading  are  signed  therefor  with  the  value 
therein  expressed. 

3.  Shippers  accountable  for  any  loss  or  damage  to  ship  or  cargo  caused 
by  inflammable,  explosive,  or  dangerous  goods  shijjped  without  full  disclosure 
of  tlicir  nature,  wlietlier  such  shipper  be  principal  or  agent ;  such  goods  may 
be  thrown  overt  card  or  destroyed  by  the  master  or  owner  of  the  ship  at  any 
time  without  compensation. 

4.  All  fines  or  damages  which  the  ship  or  cargo  may  incur  or  suffer  by 
reason  of  incorrect  or  insufficient  marking  of  packages  or  description  of  their 
contents,  shall  be  paid  by  the  shipper  or  consignee,  and  the  ship  shall  have 
a  lien  on  tlie  goods  of  such  8hii)i)er  or  consignee  for  the  amount  thereof. 

5.  Goods  delivered  to  the  ship  whilst  on  the  wharf  awaiting  shipment,  to 
be  at  sliipper's  risk  as  regards  all  perils  excepted  in  the  bill  of  lading,  except 
in  cases  where  such  goods  are  detained  awaiting  shipment  for  the  convenience 
of  the  shipowner. 

6.  Goods  once  sliii)ped  cannr)t  bo  taken  away  by  the  shipper  except  on  pay 
jnent  of  full  freight,  together  with  the  expenses  of  landing  them  and  comiien- 
hat'.on  fur  any  damage  sustained  \<y  tlic  slii[io\vncr  througli  such  taking  away. 


INTERNATIONAL  LAW   OF   AFFREIGHTMENT.  397 

7.  Ill  case  the  ship  shall  be  prevented  from  reachhrg  her  destination  l)y 
quarantine,  blockade,  ice,  or  the  hostile  act  of  any  Power,  the  master  or 
shipowners  may  discharge  the  goods  into  any  dep5t  or  lazaretto,  or  at  any 
near  available  port ;  all  expenses  thereby  incurred  on  the  goods  to  be  borne 
by  the  owners  or  receivers  thereof. 

8.  Ship  to  have  a  lien  on  all  goods  for  payment  of  freiglit  and  charges, 
including  back  freight,  dennu-rage,  forwarding  charges,  and  cliarger.  for 
carriage  to  port  of  shipment. 

9.  If  the  ship  is  able  to  carry  the  goods  to  their  destination,  but  the  goods 
by  reason  of  damage  sustained  or  of  their  own  nature  are  not  fit  to  be  carried 
all  the  way,  and  if  such  goods  have  received  an  enhancement  of  value  by 
reason  of  their  partial  carriage,  the  ship  shall  be  entitled  to  a  p^o  rata  fi-eight 
in  proportion  to  the  distance  performed,  which  freight  is  in  no  case  to  exceed 
the  amount  of  such  enhancement  of  value.  Pro  rata  fi'eight  is  admissible 
in  no  other  case  than  that  dealt  with  in  the  preceding  sentence,  unless  there 
be  an  acceptance  of  the  goods  by  the  shipper  or  owner  of  tlie  goods. 

10.  When  the  goods  are  fit  to  be  carried  to  their  destination,  but  the  ship 
is  unable  to  carry  them,  the  shipowner  may  earn  full  freiglit  by  sending  the 
goods  to  their  destination  at  his  own  expense  within  reasonable  time  in 
another  bottom ;  this  right  is  not  affected  by  an  abandonment  of  the  ship  by 
her  crew  or  to  the  underwriters;  and  the  ship  is  to  be,  for  this  purpose, 
deemed  unable  to  caiTy  the  goods  to  their  destination,  if  she  either  cannot  be 
repaired  at  all,  or  cannot  be  repaired  except  at  an  expense  exceeding  her 
value  when  repaired. 

11.  Full  fi-eight  is  due  on  damaged  goods. 

12.  No  freight  is  due  on  any  increase  in  bulk  or  weight  caused  by  the 
absorption  of  water  diiring  the  voj'age. 

13.  To  the  extent  of  the  value  of  the  lien,  freight,  which  by  the  terms  of 
the  bill  of  lading  is  made  payable  by  the  consignee,  cannot  be  demanded  from 
the  shipper  after  the  master  has  parted  with  his  lien  on  the  goods. 

14.  If  the  goods  be  not  taken  by  the  consignee  immediately  on  landing, 
or  within  such  further  time  as  is  provided  by  the  regvilations  of  the  port  of 
discharge,  they  may  be  stored  by  the  master  at  the  expense  and  risk  of  their 
owners ;  provided  always,  that  public  notice  is  given  of  the  arrival  of  the  ship 
and  the  commencement  of  the  discharge,  and  that  the  same  does  not  begin  at 
night  or  at  any  unreasonable  hoiir.  The  master  to  be  entitled  to  recover  fi'om 
the  shipper  the  difference  between  the  amount  of  freight  stipulated  in  the 
bill  of  lading  and  the  proceeds  of  the  goods,  should  the  consignee  neglect  or 
refuse  to  receive  them. 

15.  In  the  event  of  claims  for  short  delivery  w'hen  the  ship  reaches  her 
destination,  the  price  to  be  the  market  price  at  the  port  of  destination  on  the 
day  of  the  ship's  entry  at  the  custom-house,  less  all  charges  saved. 

Notice. — In  accepting  tliis  bill  of  lading  tlie  owner  of  the  goods 
and  the  shipper  expressly  accept  and  agree  to  all  its  stipulations 
and  conditions,  whether  written  or  printed. 

Dated  in  this  day  of  188     . 

Weight,  quality,  and  contents  unknown. 


393  MARITIME   LEGISLATION. 

It  ought  here  to  be  stated  tliat  during  the  last  sitting 
of  tliis  conference  on  August  11,  the  Hon.  W.  W.  Field,  of 
Xew  York,  in  the  chair, 

Mr.  EiCHARD  LowxDES  moved,  and  I  seconded,  the 
following  resolution  :  '  That  the  powers  of  the  Affreight- 
ment Committee  be  continued,  and  the  names  of  Messrs. 
Shotton,  Hodgkinson,  and  Cross  be  added.' 

This  was  carried  unanimously. 

Xow,  when  it  is  considered  that,  in  spite  of  the  general 
publicity  which  was  given  previous  to  the  Liverpool  Con 
ference  of  its  principal  object,  and  of  the  intention  of  the 
English  shipowners  to  secure  freedom  from  liability  for 
the  negligence  of  their  masters,  officers,  and  crews,  it  is 
certainly  extraordinary  that  the  Chambers  of  Commerce, 
which  are  mainly  established  for  the  protection  of 
merchant-shippers'  interest,  did  not  deem  it  worth  their 
while  to  send  a  sufficient  number  of  delegates  to  obtain 
an  equitable  arrangement  on  a  matter  of  such  vital  import- 
ance to  them. 

The  natural  consequence  of  this  lethargy  was,  that 
soon  afterwards,  from  all  parts  of  the  world,  attempts 
were  made  to  undo  the  work  of  the  Liverpool  Congress. 
In  proof  of  this  I  annex  the  following  important 
communication  received  by  the  hon.  gen.  sec.  of  the 
Association  : — 

To  Br.  Charles  Stuhbs,  Hon.  Gen.  Secretary,  Association  for  the 
Reform  and  Codification  of  the  Laiv  of  Natio7is. 

Australian  and  New  Zealand  Underwriters'  Association 

Committee  Room,  Jamaica  Coffee  House,  London  : 

August  30,  1883. 

Df-ar  Sir, — In  anticipation  of  tlio  coming  conference  of  your 
Association  to  be  held  at  Milan,  when  one  of  the  subjects  for  dis- 
cussion is  to  be  the  adoption  of  a  common  form  of  bill  of  lading, 


TXTllIIXATIONAL   LAW   OF   AFFniXrUlTArEXT.  809 

and  at  which  such  a  form  is  to  hd  submitted  to  the  conference  for 
consideration,  and  in  response  to  your  invitation  to  send  any  sug- 
gestions that  it  might  be  deemed  advisable  to  have  presented  on 
that  occasion,  I  beg  to  enclose  two  documsnts  protesting  em- 
phatically against  the  adoption  of  any  form  of  bill  of  lading  which 
will  relieve  the  shipowner  from  liability  for  the  negligence  of  his 
master  and  crew,  and  I  shall  be  obliged  by  your  communicating 
them  to  the  conference  as  the  deliberate  and  carefully  considered 
judgment  of  the  two  bodies  of  gentlemen,  entitled,  in  an  assembly 
such  as  that  to  which  tlioy  will  be  submitted,  not  only  to  respectful 
attention,  but  also  to  acceptance. 

As  yon  will  perceive,  one  of  them  bears  the  signature  of  all  the 
Australian  and  New  Zealand  Insurance  Companies,  and  the  other 
those  of  the  leading  London  Insurance  Companies,  and  as  they  may 
be  reasonably  taken  to  represent  the  views  of  the  whole  Under- 
writing Committees  of  London  and  the  Colonies  of  Australia  and 
New  Zealand  (where  precisely  the  same  opinion  on  the  subject  has 
been  recently  expressed),  and  yet  further,  the  wishes  of  all  shippers, 
I  am  persuaded  that  they  will  be  regarded  by  the  conference  as 
'  possessed  of  a  gravity  and  power  which  it  would  be  right  to 
recognise,  and  in  deference  to  which  the  clause  now  standing  in 
the  proposed  form  of  bill  of  lading  will  be  eliminated.' 

At  your  former  conference  the  insertion  of  the  clause  was 
advocated  on  the  ground  that  owners  were  fettered  in  their  choice 
of  masters  by  the  regulations  of  the  Board  of  Trade,  and  that,  not 
being  free  to  choose  whom  they  would,  they  had  a  claim  to  be 
relieved  from  all  responsibility.  The  argument,  if  it  deserves  the 
epithet,  is  captivating  rather  than  convincing. 

As  well  might  it  be  urged  that  a  man  should  be  adjudged 
guiltless  of  folly  who,  having  appointed  one  to  a  position  of  con- 
fidence and  trust  because  he  had  passed  an  examination  in  book- 
keeping and  accountancy,  found  himself  victimised  by  the  cunning 
and  dishonesty  of  his  nominee,  and  learned  by  painful  experience 
that  something  beyond  merely  professional  or  technical  knowledge 
must  be  required  of  a  man  to  be  placed  in  such  a  position.  In 
like  manner  the  shipowner,  in  his  accountability  for  the  lives  and 
property  entrusted  to  his  care,  ought  not  to  be  relieved  from  all 


400  MARITLME   LEGISLATIOX. 

responsibility  for  the  results  of  his  appointments  bocause  the 
masters  whom  he  selects  have  been  required  to  give  proof  that  they 
hiou'  how  to  manage  and  navigate  a  vessel — at  which  point  the 
Board  of  Trade  ceases  to  exercise  control— and  beyond  which  the 
shipowner's  freedom  of  choice  is  absolute  and  perfect.  If,  therefore, 
he  fail  to  make  choice  of  wise  and  fit  persons  for  so  high  and 
responsible  an  office,  surely  he  ought,  upon  every  principle  of 
morality  and  duty,  to  be  held  liable  for  all  the  consequences  of 
such  a  failure.  I  commend,  therefore,  these  remarks  and  documents 
to  your  care,  and  remain,  dear  sir. 

Yours  faithfully, 
(Signed)  E.  A.  Pears,  Secret anj. 

Resolved :  '  That  the  secretary  be  instructed  to  communicate 
to  the  secretary  of  the  Association  for  the  Reform  and  Codification 
of  the  Law  of  Nations,  that  the  members  of  this  Association  desire 
to  protest  against  the  adoption  of  any  form  of  bill  of  lading  for 
general  use  which  will  relieve  the  shipowner  from  liability  for 
the  negligence  of  the  master  or  his  men  ;  and  that  any  attempt  to 
bring  about  or  perpetuate  such  relief  will  meet  their  strenuous 
opposition.' 

Adelaide  Marine  Insurance  Company. 

South  British  Insurance  Company. 

National  Insurance  Company  of  New  Zealand. 

Pacific  Insurance  Company  of  Sydney. 

Union  of  New  Zealand,  H.G.U. 

Mercantile  Marine  of  South  Australia,  for  United  Insurance 

Company. 
Pro  Standard  Company  of  New  Zealand,  H.  J.  Symons. 
Pro  Colonial  Mutual  Marine  Insurance,  H.  J.  Symons. 
Sydney  Lloyd's,  per  G.  W.  Holt. 

Sydney  Marine  Assurance  Company,  per  A.  Meiklejohu. 
For  the  Australian  Alliance  Assurance  Company,  per  Young 

Ehlers  &  Co.  Chas.  E.  Meeson,  ajjent. 
Australian  General  Assurance  Company,     Watt,  Gilchrist  & 

Co.,  agents,  per  E.  B. 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  401 

Derwent  and  Tanner  Assurance  Company.    Ricliardson  Bros. 

&  Co.,  agents,  j)cr  U.  E.  B. 
For    the    South    Australian    Insurance    Company,    Limited, 

J.  L.  -Champion.     Agent,  T.  Galve. 
The  Colonial  Insurance  Company  of  New  Zealand.     Redforn, 

Alexander  &  Co.,  per  W.  Crandy,  agent. 
New  Zealand  Insurance  Company.     H.  J.  Bristow,  chairman. 
The   Southern  Insurance  Company,  Limited.     Y.  F.  Watt, 

secretary. 
Victoria  Insurance  Company,  Limited.     Agents, 

To  the  Secretary  of  the  Association  for  the  Reform  and  Codification 
of  the  Law  of  Nations. 

London  :  August  23,  1883. 

We,  the  undersigned,  London  Marine  Insurance  Companies, 
desire  to  protest  against  the  adoption  of  any  form  of  bill  of  lading 
for  general  use  which  will  relieve  the  shipowner  from  liability  for 
the  negligence  of  the  master  or  crew,  and  that  any  attempt  to 
bring  about  or  perpetuate  such  relief  will  meet  with  our  strenuous 
opposition. 

London  Assurance  Corporation,  per  J.  S.  Mackintosh,  under- 
writer. 
Universal  Marine  Insurance  Company,  Limited,  per  A.  Tozer, 

secretary. 
Royal  Exchange  Assurance  Corporation,  per  J.  Davis  Browne. 
Indemnity  Mutual  Marine  Association.     C.  J.  L.  0.  Smith. 
The  Alliance  Marine  Assurance  Company,  Limited.    Edward 

Richards. 
Ocean  Marine  Insurance  Company.     A.  Price,  secretary. 
Loudon   &  Provincial  Marine   Insurance   Company.       S.   L. 

Daniell. 
Thames  &  Mersey  Marine  Insurance  Company.     A.  B.  R. 
The  Commercial  Union  Association  Company,  per  Hen.   D. 

Rose. 
The  Marine  Insurance  Company,  Limited.      Robert  Loop. 


402  MARITIME   LEGISLATION. 

The  Home  &  Colonial  Marine  Insurance  Company,   Limited. 

L.  Hillman. 
The  Merchants  Marine  Company.    Thos.  Robin. 
The  Globe  ]\larine,  Limited,  per  B.  Francis  Cobb. 

These  communications  Mr.  Stubbs  presented  on  Sep- 
tember 13,  1883,  to  the  eleventh  conference  of  the  Associ- 
ation at  Milan,  Sir  Travers  Twiss  in  the  chair,  and  they 
•were  considered  by  the  executive  council  of  so  much 
importance  as  to  require  further  and,  if  possible,  more  im- 
partial discussion. 

In  the  course  of  the  following  year  it  became  apparent 
that,  in  the  United  States  of  America  also,  the  result  of  the 
Liverpool  Congress  had  not  been  received  with  anything 
like  o-eneral  satisfaction,  and  that  the  New  York  Produce 
Exchano-e,  as  well  as  the  Chamber  of  Commerce  of  the 
State  of  Xew  York  itself,  had  appointed  special  committees 
to  report  on  the  state  of  affairs  and  suggest  remedies. 

This  the  latter  body — the  Chamber  of  Commerce — did 
in  a  very  full  report  on  March  G,  1884,  which  concluded 
with  the  proposal  of  a  draft  Bill.  In  this  report  it  was 
distinctly  averred  that  the  shipowners  treated  the  whole 
matter  so  brusquely,  and  with  sucli  independent  avowal  of 
being  masters  of  the  situation,  that  the  Chamber  became 
convinced  that  only  by  adoption  of  such  a  Bill  justice  and 
equity  could  be  obtained  for  the  interest  of  the  merchant- 
shippers  and  their  underwriters. 

The  wording  of  this  Bill  Avas  to  the  following  effect : — 

An  Act  to  regulate  the  Forms  of  Bills  of  Lading  and  the  Duties 
and  Tiiabilities  of  Shipowners  and  others  : 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled  that  every 
vessel  publicly  offered  at  any  port  of  the  United  States  for  the  con- 
vcvance  of  goods  and  iiiercliandise  on  the  high  seas,  and  all  vessels 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  403 

bringing  general  cargo  to  any  port  of  the  United  States,  shall  be 
liable  to  all  the  conditions  .and  restrictions  of  this  Act. 

Section  2.  That  it  shall  not  bo  lawful  for  any  such  vessel,  her 
owners,  master,  agent,  or  manager,  to  issue  any  bill  of  lading  which 
does  not  clearly  specify  the  exact  voyage  intended  to  be  made,  and 
any  and  every  port  at  which  it  is  contemplated  she  shall  touch  in 
the  course  of  said  voyage ;  and  every  departure  from  such  voyage, 
save  only  when  compelled  thereto  by  dangers  of  the  sea,  unforeseen 
necessity,  vis  major,  or  to  save  life  and  property  in  distress  at  sea, 
and  to  tow  and  convey  the  same  into  the  nearest  or  most  conve- 
nient port  of  safety,  shall  be  deemed  a  deviation.  But  nothing  in 
this  Act  contained  shall  prevent  or  interfere  with  the  right  of  the 
vessel  to  reserve  to  herself  the  privilege  of  calling  at  or  returning 
to  any  port  or  ports  named  in  the  bill  of  lading  ;  and  a  failure  to 
exercise  such  privilege  shall  not  constitute  a  violation  of  this  Act, 
or  be  deemed  a  deviation. 

Section  3.  That  it  shall  not  be  lawful  for  any  such  vessel,  her 
owners,  master,  agent,  or  manager,  to  insert  in  any  bill  of  lading 
any  clause,  covenant,  or  agreement  whereby  the  obligations  of  the 
owners  of  said  vessel  to  properly  equip,  man,  provision,  and  outfit  such 
vessel,  and  in  every  way  and  manner  within  their,  his,  or  her  power 
to  render  said  vessel  seaworthy  and  capable  of  performing  her  in- 
tended voyage,  shall  in  any  wise  be  lessened,  weakened,  or  avoided  ; 
and  all  provisions  and  clauses  contained  in  any  bill  of  lading  issued 
by  any  such  public  carrier  relieving  from  liability  the  vessel,  her 
owners,  or  master  for  their  or  his  neglect,  or  for  any  improper  con- 
dition of  the  vessel,  shall  be  null  and  void  and  of  no  effect  in  law. 

Section  4.  That  it  shall  not  be  lawful  for  any  such  public 
carrier,  by  any  clause  or  exception  in  any  contract  or  bill  of  lading, 
to  be  relieved  from  liability  for  its,  his,  her,  or  their  negligence, 
fault,  or  failure  in  proper  stowage,  custody,  and  care  of  all  lawful 
merchandise  confided  to  their  charge,  nor  for  failure  by  reason  of 
negligence  to  deliver  the  same,  nor  to  provide  for  or  adopt  any 
other  or  different  transportation  than  that  agreed  on  by  the  vessel 
or  voyage  specified  by  which  the  goods  have  been  shipped,  liability 
for  danger  of  the  sea,  vis  major,  or  unforeseen  necessity  being  in  all 
cases  under  this  Act  excepted,  nor  to  limit  the  extent  of  their  lia- 


404  MARITBIE   LEGISLATION, 

bility  to  less  than  an  indemnity  to  the  cLaimant ;  nor  shall  anything 
in  this  Act  contained  be  construed  as  enlarging  the  right  of  any 
carrier  to  limit  his  liability  other  than  as  now  established  by  law. 

Section  5.  That  all  goods  and  merchandise  delivered  to  and 
received  bv  any  such  public  carrier  shall  be  deemed  as  shipped 
subject  to  the  conditions  of  this  Act,  and  entitled  to  a  bill  of 
ladino-  in  accordance  therewith ;  and  upon  the  refusal  of  the 
muster  or  agent  to  issue  such  bill  of  lading  on  demand  within  a 
reasonable  period  after  shipment,  unless  such  goods  and  merchan- 
dise have  been  received  from  a  preceding  carrier,  and  a  bill  of 
lading  in  conformity  hereto  has  been  issued,  clearance  of  such 
vessel  upon  which  said  goods  were  to  be  or  were  laden  shall  be  re- 
fused by  the  custom-house  authorities  of  the  port  until  such  bill 
of  lading  be  granted ;  and  such  vessel  shall  be  liable  to  an  action 
in  rem  for  all  damages  and  losses  suffered  by  the  shippers  of  goods 
or  merchandise  by  reason  of  such  refusal  or  neglect.  In  case  of 
any  dispute  as  to  whether  the  terms  of  any  bill  of  lading  disagree 
with  this  Act,  and  clearance  is  refused  or  delayed  in  consequence 
thereof,  the  following  clause  may  then  be  inserted  in  or  endorsed 
on  such  bill  of  lading,  namely  :  '  It  is  hereby  declared  that  this 
bill  of  lading,  as  well  as  all  other  copies  thereof,  are  intended  to 
conform  in  all  particulars  to  the  Act  of  Congress  of  1885  on  the 
subject  of  the  form  of  Bills  of  Lading;  and  anything  herein  con- 
tained to  the  contrary  is  hereby  made  null  and  void.'  And  there- 
upon the  collector  may  deem  such  insertion  or  endorsement  as 
making  the  bill  of  lading  conform  hereto,  and  shall  grant  the 
clearance  if  the  vessel  is  otherwise  entitled  thereto. 

Section  G.  That  if  any  vessel,  her  master,  agent,  or  manager, 
shall  plead,  in  bar  or  in  defence  of  any  suit  at  law,  any  clause  or 
exception  of  any  bill  of  lading  contrary  to  the  provisions  of  this 
Act,  the  limitation  of  liability  provided  by  section  4283  of  the 
Revised  Statutes,  relating  to  shipowners,  shall  not  be  held  to  apply 
to  such  vessel,  owners,  or  either  or  any  of  them. 

Section  7.  That  this  Act  shall  take  effect  on  the  first  day  of 
July  eighteen  hundred  and  eighty-five. 

Passed  the  House  of  Representatives,  February  3,  1885. 

Attest,  Jno.  B.  Clakk,  Jun.,  Clerl: 


INTERNATIONAL   LAW    OF   AFFREIGHTMENT.  405 

As  will  be  seen  from  the  above  attestation  of  the  Clerk 
of  the  House  of  Eepresentatives,  the  Act  passed  this  House 
on  February  3,  1885,  and  was  sent  to  the  Senate  for 
approval  or  amendment,  but  not  having  been  in  time  for 
that  session,  when,  according  to  the  advices  received,  it 
would  have  undoubtedly  passed  that  body,  no  legislation 
was  undertaken  on  the  subject. 

Strange  enouo-h,  the  influence  brouj^ht  about  hv  the 
parties  chiefly  interested  in  the  steamer  traffic  between 
New  York,  Liverpool  and  Glasgow  upon  the  New  York 
Produce  Exchange  proved  so  efficacious  that  this  impor- 
tant body  adopted,  so  far  back  as  October  28,  1884,  a 
report  recommending  with  very  few  and  unimportant 
alterations  the  adoption  of  the  following,  almost  identical 
with  the  Liverpool  Bill  of  Lading  : — • 

New  Yokk  Produce  Exchange  Bill  of  Lading. 

Received,  in  apparent  good  order  and  condition,  by 
from  to  be  transported  by  the  good  steamship 

now  lying  in  the  port  of  and  bonnd  for  with 

liberty    to    call  at  being  marked  and  numbered  as  per 

margin  (weight,  quality,  contents,  and  value  unknown),  and  to  he 
delivered  in  like  good  order  and  condition  at  the  port  of 
(or  so  near  thereto  as  she  may  safely  get)  unto  or  to  his 

or  their  assigns,  he  or  they  paying  freight  and  primage  (if 
customary)  in  cash,  without  discount,  on  the  said  goods  on  dis- 
charge, at  the  rate  of  with  primage  and  charges  as  per 
margin.  General  Average  payable  according  to  York-Antwerp 
Rules. 

It  is  mutually  agreed  that  the  ship  shall  have  liberty  to  sail 
without  pilots  ;  to  tow  and  assist  vessels  in  distress  ;  to  deviate  for 
the  purpose  of  saving  life  or  property ;  that  the  carrier  shall  have 
liberty  to  convey  goods  in  lighters  to  and  from  the  ship  at  the  risk 
of  the  owners  of  the  goods ;  and,  in  case  the  ship  shall  put  into  a 
port  of  refuge  or  be  prevented  from  any  cause  from  proceeding  in  the 


406  MARITIME   LEGISLATION. 

ordinary  course  of  her  voyage,  to  tranship  the  goods  to  their  desti- 
nation by  any  other  steamship. 

It  is  also  mutually  agreed  that  the  carrier  shall  not  be  liable 
for  loss  or  damage  occasioned  by  causes  beyond  his  control,  the 
perils  of  the  sea  or  other  waters  ;  by  fire  from  any  cause  and  where- 
soever occurring  ;  by  barratry  of  the  master  or  crew  ;  by  enemies, 
pirates  or  robbers  ;  by  arrest  and  restraint  of  princes,  rulers,  or 
people,  riots,  strikes,  or  stoppage  of  labour ;  by  explosion,  bursting 
of  boilers,  breakage  of  shafts,  or  any  latent  defect  in  hull,  machinery, 
or  appurtenances  ;  by  collisions,  stranding,  or  other  accidents  of 
navigation,  of  whatsoever  kind  (even  when  occasioned  by  the  negli- 
gence, default,  or  error  in  judgment  of  the  pilot,  master,  mariners, 
or  other  servants  of  the  shipowner,  not  resulting,  however,  in  any 
case,  from  want  of  due  diligence  by  the  owners  of  the  ship  or  any 
of  them,  or  by  the  ship's  husband  or  manager)  ;  nor  by  heating, 
decay,  putrefaction,  rust,  sweat,  change  of  character,  drainage, 
leakage,  breakage,  or  any  loss  or  damage  arising  from  the  nature 
of  the  goods  or  the  insufficiency  of  packages,  nor  for  land  damage ; 
nor  for  the  obliteration,  errors,  insufficiency,  or  absence  of  marks 
or  numbers,  address  or  description  ;  nor  for  risk  of  craft,  hulk,  or 
transliipment ;  or  any  loss  or  damage  caused  by  the  prolongation 
of  the  voyage. 

1.  It  is  also  mutually  agreed  that  the  carrier  shall  not  be  liable 
for  gold,  silver,  bullion,  specie,  documents,  jewellery,  pictures,  em- 
broideries, perfumeries,  works  of  art,  silks,  furs,  china,  porcelain, 
watches,  or  clocks,  in  any  respect,  or  for  goods  of  any  description 
whatever  above  the  value  of  20  dols.  per  cubic  foot,  and  in  no  case 
is  the  carrier  to  be  liable  beyond  500  dols.  per  package,  unless  bills 
of  lading  are  signed  therefor,  with  the  value  therein  expressed, 
and  a  special  agreement  is  made. 

2.  Also,  that  shii)])<'rs  shall  be  liable  for  any  loss  or  damage  to 
ship  or  cargo  caused  by  inllaniniable,  explosive,  or  dangerous  goods, 
shii)ped  without  full  disclosure  of  their  nature,  whether  such  shipper 
l^e  principal  or  agent ;  and  such  goods  may  be  thrown  overboard  or 
destroyed  at  any  time  withoiil  comijensation. 

'].  Also,  that  the  carrier  shall  h;ive  a  lien  on  the  goods  for  all 
liiights,  priuuigcs,  and  charges,  and  also  for  fines  or  damages  which 


INTEliNATIONAL   LAW   OF   AFFREIGHTMENT.  407 

the  ship  or  cargo  may  incur  or  suH'er  by  reason  of  the  incorrect  or 
insufiicienb  marking,  nuiiiltcring,  or  addressing  of  packages,  or 
description  of  their  contents. 

4.  Also,  that  in  case  the  ship  sliall  be  prevented  from  reaching 
her  destination  l)y  quarantine,  the  carrier  may  discharge  the  goods 
into  any  di^pot  or  hizaretto,  and  such  discharge  shall  be  deemed  a 
final  delivery  under  this  contract,  and  all  the  expenses  thereby 
incurred  on  the  goods  sliall  l)e  a  lien  thereon. 

5.  Also,  that  the  ship  may  commence  discharge  immediately 
on  arrival  and  discharge  continuously,  the  collector  of  the  port 
being  hereby  authorised  to  grant  a  general  order  for  discharge 
immediately  on  arrival,  and  upon  discharge  the  goods  shall  be  at 
the  risk  of  the  consignee,  and  if  not  taken  by  him  within  such 
time  as  is  provided  by  the  regulations  of  the  i)ort  of  discharge, 
they  may  be  stored  by  the  carrier  at  the  expense  and  risk  of  their 
owners. 

Note. — After  Clause  5  all  conditions  relating  to  delivery  at 
different  ports  (also  ice  and  lighterage,  blockade  and  special 
quarantine  clauses,  &c.),  to  be  inserted  as  agreed  upon  by  shippers 
and  carriers  in  various  trades. 

6.  Also,  that  full  freight  is  payable  on  damaged  or  unsound 
goods ;  but  no  freight  is  due  on  any  increase  in  bulk  or  weight 
caused  by  the  absorption  of  water  during  the  voyage. 

7.  Also,  in  the  event  of  claims  for  short  delivery  when  the 
ship  reaches  her  destination,  the  price  shall  be  the  market  price  at 
the  port  of  destination  on  the  day  of  the  shijD's  entry  at  the 
custom-house,  less  all  charges  saved. 

8.  Freight  paj^able  on  weight  is  to  be  paid  on  gross  weight 
landed  from  ocean  steamship  unless  otherwise  agreed. 

9.  l^u•cels  for  different  consignees  collected  or  made  in  single 
packages  addressed  to  one  consignee  to  pay  full  freight  on  each 
parcel. 

And  finally,  in  accepting  this  bill  of  lading,  the  shipper,  owner, 
and  consignee  of  the  goods,  and  the  holder  of  the  bill  of  lading, 
agree  to  be  bound  by  all  of  its  stipulations,  exceptions,  and  con- 
ditions, whether  written  or  printed,  as  fully  as  if  they  were  all 
signed  by  such  shipper,  owner,  consignee,  or  holder. 


408  MARIT1>JE   LEGISLATION. 

In  witness  whereof,  the  master  or  agent  of  the  said  ship  hath 
affirmed  to  bills  of  lading,  all  of  this  tenor  and  date,  num- 

bered consecutively,  one  of  which  being  accomplished  and  given 
up  to  the  carrier,  the  others  to  stand  void. 

Dated  in  this  day  of  188. 

Tlie  Xew  York  Produce  Exchange,  in  reporting  upon 
tliis  bill  of  lading,  added  the  following  statement  -vvitli 
reference  to  the  special  question  of  ship>owners'  liability  : — 

The  most  important  portion  of  these  clauses — namely,  the 
exemption  of  the  carrier  from  liability  for  losses  caused  by  the 
default  of  any  servant  of  the  ship,  provided  the  owner  or  manager 
has  done  his  duty — has  been  fully  preserved.  Your  committee 
beg  to  reiterate  the  statement  made  by  the  framers  of  the  bill  of 
lading  submitted  to  them  for  revision,  in  which  they  pointed  out 
that  this  exemption  is  in  conflict  with  the  doctrine  hitherto  held 
by  our  Federal  Courts,  though  it  has  for  a  long  time  been  sanc- 
tioned by  custom,  and  by  the  all  but  general  practice  of  under- 
writers. Your  committee  are  equally  decided  in  their  opinion 
that  this  exemiDtion  is  demanded  by  the  circumstances  under 
which  modern  steamship  traffic  is  carried  on,  and  that  our  Federal 
Courts  will  not  much  longer  be  able  to  resist  a  change  so  eminently 
just  and  necessary.  Your  committee  may  add  that  the  carriers' 
liability  for  the  seaworthy  condition  of  his  ship  and  for  good 
stowage  is  in  no  way  affected  by  these  clauses. 

It  was  evident  that  a  declaration  from  so  important  a 
body  as  the  New  York  Produce  Exchange  in  favour  of  the 
shipowners'  contentions  as  expressed  in  the  Liverpool  Bill 
of  Lading  would  carry  very  great  weight  in  tlie  further 
consideration  of  this  subject,  and  it  cannot  be  denied 
that,  until  the  Legislatures  of  the  different  maritime 
nations  take  the  matter  in  liniid,  the  united  and  over- 
powering inlhicnce  of  I  he  sliipowncrs  will  carry  the  day. 

We  arj-ive  now  at  the   time  when,  iji  the  city  of  Lou- 


INTERNATIONAL   LAW   OF  AFFIIEIGIITMENT.  400 

don,  not  only  the  meniLers  of  Lloyd's,  l)ut  the  merchants 
and  shipowners  assemblmg  at  the  '  Baltic,'  as  well  as  the 
members  of  the  Chamber  of  Commerce,  proceeded  pub- 
licly to  discuss  the  Bill  of  Lading  question,  and  in  order 
to  do  justice  to  the  arguments  put  forward  at  these 
meetings,  I  think  it  best  to  reproduce  out  of  the  '  Times ' 
the  reports  therein  contained  of  them. 

In  the  '  Times  '  of  February  5,  1885,  it  was  stated 
that : — 

A  meeting  of  undeinvriters  of  Lloyd's,  Liverpool,  and  Glasgow, 
and  of  various  London  marine  insurance  companies,  was  held 
yesterday  at  Lloyd's  under  the  presidency  of  Mr.  William  Young. 
Tlie  circular  convening  the  meeting,  which  was  issued  on  the 
21st  ult.  from  Lloyd's,  stated  that  'A  deputation  of  shipowners 
and  other  gentlemen  connected  with  various  marine  insurance 
clubs  had,  at  their  special  request,  an  interview  with  the  Committee 
of  Lloyd's  on  January  16.  They  stated  that  their  object  was  to 
obtain  the  consent  of  Lloyd's  to  the  adoption  of  a  bill  of  lading 
which  the  deputation  proposed  should  be  called  '  Lloyd's  Bill  of 
Lading.'  The  chief  point  which  the  shipowners  desire  is  the  in- 
troduction of  the  clause  concerning  negligence,  so  that  claims 
against  shipowners  under  that  head  with  regard  to  cargo  may 
cease.  The  committee  propose  to  lay  this  subject  before  a  general 
meeting,'  &c. 

The  Chairman,  having  apologised  for  the  unavoidable  absence 
of  Mr.  Goschen  (Chairman  of  Lloyd's),  stated  that  the  circular  of 
the  21st  ult.  pretty  well  explained  the  reason  of  that  meeting. 
The  request  contained  therein  from  gentlemen  in  the  north  was 
one  which  could  not  be  ignored  by  the  Committee  of  Lloyd's,  but 
they  had  felt  that  the  matter  was  so  important  that  it  was  their 
duty  to  call  that  meeting  to  consult  with  them  and  underwriters 
generally  on  the  document  in  question.  Hence  the  invitation  to 
Liverpool,  Glasgow,  to  various  companies  in  London,  and  to  other 
underwriting  bodies.  As  an  indication  of  the  opinion  of  gentle- 
men in  different  places  he  would  i-efer  shortly  to  views  which  had 


410  MARITIME   LEGISLATION. 

been  expressed  in  letters  wliicli  liad  been  received.  The  Under- 
writers' Association,  Glasgow,  were  strougly  of  opinion  that  it 
would  be  undesirable  in  tbe  interests  of  the  mercantile  commnnity 
generally  that  the  shipowner  should  have  the  power  to  contract 
himself  out  of  responsibility  to  the  owners  of  goods  by  his  vessel 
for  loss  through  the  negligence  of  his  officers  and  crew.  The 
Underwriters'  Association,  Liverpool,  had  sent  to  the  meeting  Mr. 
Cross  (chairman),  Mr,  Storey  (deputy  chairman),  and  j\Ir.  A.  N. 
Dale,  who  would  be  able  to  speak  for  themselves ;  but  it  was 
understood  that  Liverpool  generally  was  in  favour  o^  the  New  York 
Produce  Exchange  Bill  of  Lading.  The  North  of  England  Steam- 
ship Owners'  Association  approved  of  the  New  York  Produce  Ex- 
change Bill  of  Lading.  The  Hull  Chamber  of  Commerce  and 
Shipping  were  in  favour  of  the  form  of  bill  of  lading  adopted  in 
August  1882.  The  Newcastle  and  Gateshead  Chamber  of  Com- 
merce resolved  to  memorialise  Lloyd's  Committee  in  favour  of  the 
adoption  of  a  common  form  of  bill  of  lading  to  be  called  '  Lloyd's 
Bill  of  Lading.'  To  that  an  amendment  was  moved:  'That  such 
common  form  of  bill  of  lading  shall  not  contain  any  conditions 
which  might  further  limit  the  existing  responsibilities  of  ship- 
owners as  common  carriers.'  This  amendment,  they  were  in- 
formed, was  lost  by  one  vote.  The  New  York  Underwriters' 
Association  had  sent  the  following  cablegram :  '  New  York 
underwriters  object  to  restoring  negligence  clause  in  bill  of  lading, 
and  will  not  assume  risks  of  carelessness  of  shipowners  and  crew 
under  ordinary  policy.'  They  had  also  had  letters  from  various 
gentlemen  well  known  to  them,  and  especially  one  from  a  gentle- 
man who,  he  was  afraid,  was  not  at  that  meeting,  Mr.  Tozer,  who 
liad  assisted  them  on  various  occasions  with  his  advice.  Mr.  Tozer 
had  been  at  first  iiicliiird  to  say:  '  Do  nothing,'  but  on  having  the 
resolutions  which  would  In-  subiniltt-d  to  the  meeting  shown  to 
him,  he  was  converted  to  the  views  which  were  expressed  therein, 
and  liad  authorised  hiin  to  state  so.  They  would  have  observed 
in  the  circular  which  had  been  issued  the  use  of  the  phrase 
'  Lloyd's  Bill  of  Jjading,'  but  that  w\as  without  the  leave  and 
autliority  of  Lloyd's  Committee.  Some  had  urged  that  this  was  a 
matter  of  no  concern  to  underwriters  at  all,  and  that  it  lay  be- 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  411 

tweon  the  shipowner  and  the  merchant ;  but  in  answer  to  that  it 
might  be  pointed  ont  that  they  were  employed  by  both  and  had 
duties  to  botli.  Jn  liis  own  individual  opinion  he  thought  under- 
writers really  represented  the  public  in  the  controversy ;  their 
interest  was  the  interest  of  the  public.  They  would  understand 
that  in  moving  the  resolutions,  as  he  intended  to  do,  he  was  not 
in  any  way  speaking  for  the  committee  as  a  whole.  That  was  an 
open  meeting,  and  the  question  was  not  a  cabinet  question,  but 
one  for  the  meeting  to  decide.  If  they  wished  the  matter  to  go 
further,  they  would  approve  the  resolutions ;  while,  if  they  wished 
it  to  end  now,  they  would  have  nothing  to  do  but  to  negative  them. 
The  resolutions,  he  thought,  bore  rather  towards  the  idea  of  some 
sort  of  compromise,  and  it  seemed  to  him  that  they  would  afford 
some  sort  of  modus  vivendi  between  all  parties.  He  concluded  by 
moving  the  following  resolutions:  — 

'  (1).  That,  in  the  opinion  of  this  meeting,  the  proposed  reliet 
of  shipowners  from  responsibility  for  the  conduct  of  their  servants 
woidd  tend  to  increase  preventable  loss  of  life  and  property  at  sea, 
and  is  not  desirable  in  the  interest  of  the  mercantile  community. 

'  (2).  That  if  the  responsibility  of  shipowners  as  at  present 
limited  by  law  be  shown  to  be  undul}"  onerous,  having  regard  to 
the  conditions  of  the  business,  a  readjustment  of  the  limits  will 
be  the  only  satisfactory  remedy. 

'  (3).  That  this  meeting,  while  ready  to  consider  any  reasonable 
proposal  with  regard  to  the  general  limit  of  responsibility,  con- 
siders that  any  alterations  of  the  ordinary  conditions  of  carriage 
by  sea  should  be  effected  by  legislation  and  not  by  private  con- 
tracts between  individual  merchants  and  the  shipowner. 

'  (4).  That  the  risks  of  merchants  who  accept  charters  or  bills 
of  lading  exempting  the  shipowners  from  responsibility  for  the 
acts  of  their  servants  will  be  thereby  greatly  increased,  and  that 
the  acceptance  by  merchants  of  such  increased  risks  will  be  a 
material  circumstance  which  ought  to  be  communicated  to  under- 
writers when  they  are  invited  to  insure  such  risks. 

'  (5),  That  the  resolutions  passed  by  this  meeting  be  made 
public' 

!Mr.  S.  I.  Da  Costa,  in  seconding  the  resolutions,  stated  that 


412  MARITIME    LEGISLATION. 

the  subject  had  engaged  his  attention  for  some  time,  and  he  had 
endeavoured  to  consider  it  without  prejudice  to  the  many  conflicting 
interests  involved.  From  a  shipowner's  point  of  view  the  present 
state  of  thino-s  must  be  very  unsatisfactory,  and  he  thought  the 
shipowner  was  justified  in  seeking  some  measure  of  relief  from  the 
liabilities  which  the  connuon  law  imposed  upon  him.  It  did  not, 
however,  follow  that  the  underwriter  was  to  relieve  him  entirely 
from  all  liability  arising  from  negligent  navigation,  or  to  endorse 
every  condition  which  in  his  contract  with  the  merchant  the  ship- 
owner desired  to  impose.  During  the  period  last  year  in  which 
he  (the  speaker)  occupied  the  position  of  Mr.  Young,  the  subject 
came  before  him  and  the  Committee  of  Lloyd's  on  a  communication 
from  the  United  States,  and  various  questions  were  asked  and 
opinions  elicited  from  the  committee  and  underwriters  of  the 
United  Kingdom.  He  had  thought  it  would  not  be  undesirable 
to  have  a  conference  at  which  underwriters,  merchants,  and  ship- 
owners could  express  their  opinion  on  the  subject,  and  he  used  his 
best  endeavours  to  bring  about  a  conference,  but  entirely  failed. 
While  he  deprecated  the  idea  that  an  underwriter  should  look  upon 
tlie  recovery  from  an  owner  for  a  loss  paid  to  a  merchant  for  mer- 
chandise sacrificed  through  negligent  navigation  in  the  light  of  a 
salvage  on  his  underwriting  account,  he  felt  convinced  that  if  the 
clauses  which  it  was  proposed  to  introduce  into  charter-parties  and 
bills  of  lading  became  current  the  losses  arising  from  negligence 
would  largely  increase,  and  underwriters  would  suffer  accordiugly. 
He  took  it,  therefore,  that  to  accept  the  conditions  proposed,  and 
to  give  them  the  imprimatur  of  Lloyd's,  was  quite  out  of  the 
question ;  and  it  would  bo  necessary  for  underwriters  to  make  this 
clearly  understood  by  those  effecting  insurance  on  goods  with  them, 
and  that  if  new  conditions  were  to  be  imported  into  charters  they 
must  be  communicated  to  underwriters  and  an  equivalent  in  pre- 
mium given.  ■  He  trusted  that  the  resolutions  would  meet  with  the 
unanimous  approval  of  the  meeting,  and  that  they  might  prove  to 
be  the  means  of  eliciting  some  proposals  from  shipowners  which 
might  in  th(!  end  be  satisfactory  to  all  the  parties  interested  in  this 
most  important  question. 

"Mh.  C.  M,  Norwood.  M.l'..  said  he  had  understood  Mr.  J)a 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  413 

Costa  to  say  that  the  question  at  issue  was  entirely  a  matter  for 
underwriters  as  far  as  the  meeting  was  concerned.  He  (the 
speaker),  however,  ventured  to  think,  in  the  first  place,  that  there 
were  many  members  of  Lloyd's,  and  subscribing  members,  who 
were  not  underwriters  ;  but  he  also  took  a  broader  ground,  and  he 
thought  it  a  great  pity  that  they  should  define  the  relations  between 
shipowners  and  underwriters.  His  view  was  that  they  were  all — 
underwriters,  shippers,  and  merchants — mutually  interested  in  the 
settlement  of  the  question.  He  entirely  dissented  from  the  view 
of  Mr.  Da  Costa,  that  if  the  liability  of  shipowners  for  negligence, 
accidents,  and  default  of  their  masters  and  mates  at  sea  were 
removed  or  reduced  there  would  be  a  great  increase  of  losses.  The 
position  which  he  took — and  which  he  believed  every  shipowner 
took — was  that  it  was  not  only  his  legal  but  his  moral  duty  to 
make  his  ship  seaworthy,  to  man  her  properly,  and  to  conduct  his 
business,  as  far  as  the  ship  was  in  his  control,  to  the  best  of  his 
ability  ;  and  if  there  was  any  default  on  the  part  of  the  shipowner 
in  a  matter  in  which  he  had  control,  he  (Mr.  Norwood)  would  be 
the  last  to  ask  to  be  relieved  from  the  responsibility.  The  old 
doctrine  was  that  a  voyage  by  sea  was  a  mutual  undertaking 
consisting  of  risk  all  round,  and  to  attempt  to  saddle  the  pecuniary 
responsibility  of  goods  and  cargo  on  a  shipowner  for  the  default 
of  his  servant  thousands  of  miles  away  was,  he  thought,  a  most 
monstrous  innovation.  Every  one  in  that  room,  too,  knew  that  it 
was  impossible  for  a  shipowner  to  put  in  charge  of  his  vessel  a 
captain,  mate,  engineer,  or  any  responsible  person  unless  that 
person  had  the  imprimatur  of  the  Board  of  Trade.  If,  as  he  believed, 
the  majority  of  shipowners  selected  the  best  men  to  command  their 
ships,  he  thought  it  monstrous  that  they  should  be  held  respon- 
sible far  the  acts  of  these  men,  who  were  selected  especially  by 
a  Government  department  to  stand  between  the  shipowner,  the 
underwriter,  and  the  merchant.  As  to  an  alteration  in  the  bill  of 
lading,  he  really  did  think  that  the  request  which  had  been  made 
was  not  unreasonable — to  make  clear  the  limitation  of  an  onerous 
responsibility ;  and  he  maintained  that  that  was  not  a  request 
which  should  be  lightly  rejected.  As  a  body,  shipowners  had  been 
attacked  in  a  manner  which  was  altogether  unjustifiable,  and  it  was 


4U  MARITIME   LEGISLATION. 

an  insulting  suggestion  that  the  chief  object  of  the  shipowner  was 
to  lose  his  ship  and  draw  his  money. 

Mr.  "W.  Matthews  (Messrs.  Lamplough  and  Co.)  maintained 
that  if  underwriters  did  not  themselves  take  such  risks  aS  those  in 
question,  shipowners  would  form  themselves  into  mutual  clubs,  and 
thus  underwriters  would  ultimately  become  the  losers. 

]\Ir.  F.  a.  White  (Marine  Insurance  Company)  bore  testimony 
to  what  Mr.  Norwood  had  said  from  the  shipowners'  point  of  view. 
There  was,  however,  not  only  the  question  of  the  underwriter  in 
this  matter,  but  the  merchant  who  was  not  insured.  He  was  sure 
that  underwriters,  as  one  of  whom  he  spoke,  would  discuss  the 
matter  fairly  and  make  any  reasonable  concession.  He  maintained, 
however,  that  the  present  was  not  the  proper  time  for  discussing 
the  matter,  and  that  they  should  await  the  report  of  the  Royal 
Commission,  -which  had  emanated  entirely  from  the  shipowners. 

Mr.  J.  G.  PiTCAiRN  was  understood  to  contend  that  shipowners 
had  no  control  over  the  officers  of  their  vessels,  and  to  express  a 
wish  that  the  meeting  should  be  adjourned  to  see  whether  some 
arrangement  could  not  be  made  with  shipowners  and  merchants. 

^Ir.  J.  Park  said  he  could  remember  the  time  before  1854 
when  the  shipowners'  liability  was  put  in  the  Merchant  Shipping 
Act  of  that  year.  In  asking  underwriters  to  take  the  risk  in 
question,  shipowners  were  not  asking  them  to  pay  anything  but 
what  their  fathers  had  paid  before  them. 

;Mr.  (jr.  F.  Miller  (underwriter)  said  they  were  deeply  con- 
vinced of  the  importance  of  the  third  resolution.  He  thought 
nothing  should  be  done  pending  the  report  of  the  Royal  Commission. 

^[r.  Dale  (of  Liverpool)  said  the  Liverpool  Underwriters' 
Association  had  given  much  consideration  to  the  important  question 
under  discussion,  and  had  come  to  the  conclusion  that  it  was  neither 
equitable  to  shipowners  nor  politic  for  underwriters  to  refuse  the 
suggestion  of  shipowners — that  they  should  be  exempted  under 
bills  of  lading  from  liabilities  in  res})ect  of  disasters  which  were 
absolutely  beyond  the  shipowner's  control,  and  which  he  had  used 
all  due  diligence  to  prevent.  He  regretted  to  see,  from  the  expres- 
sions of  feeling  already  given,  that  the  meeting  took  a  different 
view.     In    New    York,    however  (by    no    means    an   unimportant 


INTERNATIONAL    LAW    OF    AFFRKIGIITMENT.  415 

commercial  conimunity),  tlio  priucii)l('  had  l)een  conceded,  and, 
though  the  decisions  of  the  American  Courts  had  hitherto  been 
adverse  to  the  shipowners,  the  steamship-owners  and  shippers  com- 
bined liad  agreed  on  a  bill  of  lading  which  was  satisfactory  to  both 
parties.  The  Liverpool  steamship  owners  had  recently  endeavoured 
to  push  those  concessions  somewhat  further,  and  had  sought  to 
exempt  themselves  from  responsibility  as  to  seaworthiness  and 
proper  stowage.  That  had  been  resolutely  withstood  by  Liverpool 
underwriters.  A  compromise  was  ])robable  by  which  the  steam- 
ship-owners would  withdraw  their  pretensions  in  consideration  of 
underwriters  conceding  what  was  called  the  '  negligence  clause.'  He 
regretted  that  the  meeting  showed  so  little  disposition  to  favour 
this  compromise.  Risk  was  the  parent  of  premium.  It  was  the 
business  of  an  underwriter  to  insure  against  perils  of  the  sea  and 
to  receive  an  adequate  premium  for  so  doing.  In  the  past  the 
errors  of  judgment  of  masters  and  crews  had  been  considered  a 
peril  of  the  sea  covered  by  an  ordinary  policy  ;  but  recent  decisions 
in  our  Courts  had  shown  there  was,  as  an  underwriter  in  a  letter  to 
the  '  Times '  had  expressed  it,  a  flaw  in  the  shipowners'  armour.  Of 
that  flaw  underwriters  had  taken  advantage.  He  thought  it  would 
not  be  Avise  to  continue  to  do  so  ;  hence  he  strongly  advised  con- 
ceding to  the  shipowner  the  negligence  clause,  leaving  him  liable 
only  for  that  which  he  could  control.  The  resolutions  had  not,  he 
thought,  been  prepared  with  that  care  which  so  important  a  subject 
required,  and  one,  at  least,  was  especially  offensive  to  shipowners. 
He  hoped,  therefore,  that  the  meeting  would  be  willing  to  postpone 
any  discussion  on  them,  and  would  appoint  a  committee  composed 
of  underwriters,  shipowners,  and  merchants  to  consider  the  whole 
subject,  and  to  report  to  a  future  meeting.  He  concluded  by 
moving  an  amendment  to  this  effect. 

Mr.  Da  Costa,  amid  some  laughter,  said  he  would  second  the 
amendment,  but 

The  Chairman  pointed  out  that  if  he  did  he  would  negative 
the  resolutions  he  had  seconded. 

Mr.  Cross  (Liverpool)  seconded  the  amendment.  He  said  he 
knew,  indirectly,  that  a  conclusion  could  not  be  arrived  at  by  the 
Roval  Commission  in  less  than  three  vears. 


416  MARITIME   LEGISLATION. 

]\Jr.  Lodge  (the  Marine  Insurance  Company)  held  that,  if  the 
law  was  to  be  altered,  the  application  should  be  made  to  the 
Legislature,  and  not  to  the  Committee  of  Lloyd's.  All  that 
underwriters  said,  and  all  that  he  had  power  to  say,  was  that  they 
thouo-ht  it  was  more  proper  to  await  the  result  of  the  Royal  Cora- 
mission,  and  meantime  not  to  commit  themselves  to  any  details. 

Mr.  John  Glover  asked  whether,  if  the  shipowners  were  con- 
tented to  wait,  as  recommended  by  Mr.  Lodge,  until  the  result  of 
the  Royal  Commission  had  been  ascertained,  probably  about  three 
years  hence,  the  underwriters  w^ould  undertake  in  the  meantime 
not  to  bring  any  further  actions  against  steamship-owners  to 
recover  the  value  of  cargoes  lost  through  alleged  negligence  at 
sea.  (Mr.  Lodge  :  Certainly  not.)  He  had  anticipated  that 
reply,  and,  consequently,  it  was  impossible  that  shipowners  could 
go  on  having  an  action  over  every  loss  in  which  it  was  to  be 
determined  between  two  underwriters  who  should  pay  for  a  loss 
for  covering  which  only  one  of  the  two  had  received  premium.  . 
He  also  thought  it  was  much  wiser  for  men  of  business,  parties  to 
ordinary  mercantile  transactions,  to  settle  such  questions  among 
themselves  by  the  adoption  of  proper  documents,  instead  of  waiting 
an  indefinite  period  for  legislativ^e  relief  which  might  never  come. 
He  also  pointed  out  that  for  underwriters  to  insist  on  retaining 
the  right  to  proceed  in  the  name  of  merchants  against  shipowners 
for  the  occurrence  of  such  losses  foreshadowed  double  insurance 
arrangements,  which  were  always  objectionable,  the  alternative  to 
which  was  that  any  shipowner  might  find  himself  ruined  through 
the  occurrence  of  peril  attributable  to  the  fault  of  one  of  his 
servants  over  wliicli  he  had  absolutely  no  control.  The  effect  of 
the  improved  bill  of  lading  recommended  would  make  traffic  at 
sea  safer,  not  more  hazardous,  for  if  the  master-and-servant 
doctrine  wi-ro  eliminated  from  such  cases  negligent  servants  would 
be  dismissed  promptly,  whereas  at  present  it  was  often  necessary 
to  retain  them  in  service  because  their  evidence  was  wanted  in 
legal  proceedings.  In  fact,  the  present  uncertainty  led  to  nothing 
but  disputes  and  litigation,  the  net  result  of  which  was  that  the 
loss  had  to  be  borne  by  tlie  underwriters  j>/;^s-  large  amounts  of  law 
costs.     The  resolutions  pointed   to  inquiry  and   tlie   need   for  full 


INTERNATIONAL   LAW  OF   AFFREIGHTMENT.  417 

consideration  of  tlie  whole  subject,  and  he  advised  the  members  of 
Lloyd's  to  sanation  the  appointment  of  a  committee  for  the  purpose 
of  making  such  inquiry  and  co-operating  with  other  public  bodies 
labouring  to  settle  the  matter  satisfiictorily. 

Mr.  Henry  Green  (Chairman  of  the  Chamber  of  Shipping) 
observed  that  Mr.  Glover  had  expressed  what  they  felt.  He 
supported  the  proposal  of  ^[r.  Dale  for  the  appointment  of  a  com- 
mittee. 

After  a  few  observations  from  ]\[r.  Wren, 

The  Chairman  replied,  and  stated  that,  if  they  passed  the  reso- 
lutions, the  second  one  meant  coming  to  some  understanding 
between  the  shipowner  and  the  underwriter  as  to  the  amount  of 
liability  that  had  to  be  borne. 

Mr.  Michael  Wills  thought  they  were  pretty  much  agreed 
on  the  general  question  that  it  was  desirable  to  have  a  committee 
on  the  subject.     He  supported  the  proposal  of  Mr.  Dale. 

The  Chairman  put  the  amendment,  in  favour  of  which  it  was 
stated  that  there  were  47  votes,  and  it  was,  therefore,  declared  lost. 

Mr.  Norwood  protested  against  the  first  resolution. 

The  Chairman  expressed  his  conviction  that  there  was  not  the 
slightest  intention  on  the  part  of  anyone  in  the  room  to  cast  any 
reflection  on  shipowners. 

The  opinion  of  the  meeting  was  taken  as  to  the  omission  of  the 
first  resolution,  and  83  hands  were  held  up  in  favour  of  this  course 
being  adopted.     It  was  therefore  struck  out. 

The  Chairman  then  put  the  remainder  of  the  resolutions  as  a 
substantive  motion,  and  65  voting  for  it,  it  was  declared  carried. 

The  proceedings  then  terminated. 

Further,  the  'Times'  of  the  11th  of  the  same  month 
stated : — 

A  crowded  meeting  was  held  yesterday  at  the  Baltic,  Thread- 
needle  Street,  to  take  into  consideration  the  proposed  international 
bill  of  lading.  Mr.  S.  W.  Keene,  of  the  Corn  Exchange, 
presided. 

The  Chairman,  in  opening  the  proceedings,  observed  that  he 


418  MAKiriME   LKGISLATloX. 

had  been  striving  for  many  years  to  eflfect  improvements  in  bill.s 
of  lading  in  common  use,  and  at  last  he  thought  there  was  a 
reasonable  prospect  of  making  a  very  considerable  improvement. 
The  meeting  was  called  for  the  purpose  of  hearing  a  statement  of 
the  present  position  of  the  question,  and  would  be  asked  to  appoint 
a  committee  to  examine  into  the  whole  subject,  and  to  co-operate 
with  other  public  bodies  in  the  effort  to  establish  a  common  form 
of  bill  of  lading. 

Mr.  John  Glover  proposed  a  resolution  in  accordance  with 
the  object  of  the  meeting.  He  pointed  out  that  merchants  justly 
complained  of  the  variety  in  the  terms  of  bills  of  lading,  and 
showed  that  the  international  bill  of  lading  would  place  responsi- 
bility on  shipowners,  and  very  properly  so,  in  respect  of  any 
unseaworthiness  in  vessels  and  bad  stowage,  and  would  make 
them  responsible  for  any  negligence  whatever  on  their  own  part. 
In  this  respect  important  improvements  would  be  effected  in  the 
interests  of  merchants.  It  was  also  proposed  by  the  common  bill 
of  lading  to  insert  in  all  bills  of  lading  what  are  known  as  the 
'  negligence  clauses,'  which,  he  said,  Avere  now  almost  universally 
used  in  connection  with  the  great  steam  lines,  and  in  the 
American,  Indian,  Australian,  Cliina,  and  New  Zealand  trades. 
Notwithstanding  the  objection  of  some  underwriters  to  the  latter 
change,  there  was  no  difliculty  in  finding  underwriters  to  take 
risks,  without  any  additional  premium,  in  bills  of  lading  containing 
these  clauses,  as  there  was  a  general  impression  that  it  was  not 
fair  on  the  part  of  underwriters  to  receive  premiums  against  losses 
and  not  to  bear  the  losses  when  they  occurred.  Shipowners  had 
been  rather  rudely  awakened  from  a  delusion  they  had  entertained, 
to  the  effect  that  the  old  words  in  bills  of  lading — namely,  '  all 
and  every  other  dangers  and  accidents  of  the  seas,  rivers,  and 
navigation  of  whatever  nature  and  kind  soever  during  the  said 
voyage  always  excepted  ' — saved  them  from  liability  for  errors  in 
navigation  inseparable  from  the  employment  of  human  agency. 
Actions  for  large  sums  had  lately  been  brought  against  shipowners, 
in  which  they  had  been  asked  to  pay  for  cargoes  lost  through  mis- 
takes, collisions,  fogs,  and  other  common  causes  of  loss  at  sea. 
Shipown'-rs.  thfivforc  had  imw  come  to  the  conclusidn  that  if  tliey 


IXTERXATIOXAL   T.AW    OF   AFFREIGHTMENT.  419 

had  to  bear  tliese  risks  their  only  course  was  to  contract  for  insur- 
ance as  well  as  freight,  so  that  out  of  the  premiums  they  might  be 
able  to  pay  the  losses  arising  from  negligence  and  otlior  causes  of 
the  kind  referred  to.  It  was  felt  to  be  unfair  tiiat  underwriters 
who  had  received  premiums  against  losses  should,  on  the  occur- 
rence of  such  losses,  be  enabled  to  keep  the  premiums  and  visit 
the  loss  on  the  s]ii[)owuers. 

Mr.  John  Ross  seconded  the  resolution. 

Mr.  Stkphkx  Ralli  opposed  the  motion,  and  expressed  his 
opinion  that  the  bill  of  lading,  as  amended  by  the  New  York 
l^roduce  Exeliange,  was  still  objectionable.  He  thought  it  ad- 
visable that  the  whole  subject  should  stand  over  until  the  Royal 
Commission  had  made  their  report. 

Mr.  Valeri  acquiesced  in  the  views  of  Mr.  Ralli. 

Mr.  C.  ^[.  Norwood,  M.P.,  supported  the  resolution,  and 
stated  that  there  was  not  the  least  difficulty  in  merchants  covering 
the  negligence  clauvse  asked  for  without  any  additional  premium. 
An  improvement  in  bills  of  lading  would  result  from  the  adoption 
of  a  common  form  based  on  the  draft  before  the  meeting,  and  it 
was,  therefore,  in  his  opinion,  highly  desirable  to  appoint  a  com- 
mittee to  further  consider  the  matter. 

Mr.  Edward  Power  suggested  that  the  resolution  should  be 
amended,  so  that  the  subject  should  be  referred  for  consideration, 
without  reference  to  the  New  York  Produce  Exchange  Bill  of 
Lading,  and  this  suggestion  was  accepted. 

On  a  vote  being  taken,  the  resolution,  as  amended,  was  carried 
by  a  large  majority,  and  a  committee  was  subsequently  appointed. 

And  the  '  Times '  of  March  5  reported  the  hist  of  these 
three  meetings  as  follows  : — 

Yesterday  a  meeting  of  members  of  the  London  Chamber  of 
Commerce,  and  of  merchants,  bankers,  shippers,  and  others 
interested  in  a  revision  of  the  existing  clauses  of  bills  of  lading, 
from  a  mercantile  point  of  view,  was  held  at  the  City  Terminus 
Hotel,  Cannon  Street.  Mr.  Magniac,  M.P.,  president  of  the 
Chamber,  occupied    the    chiiii-.  and  among    those  present  were — • 

K  i;  1' 


420  ^rAPJTIME   LEGISr.ATION. 

Mr.  J.  H.  Tritton.  chairman,  and  the  following  members  of  the 
council  :— Messrs.  John  Glover,  E.  J.  Johnson,  W.  H.  Peat, 
J.  G.  Hamilton,  George  Martineau,  J.  T.  "Ritchie,  J.  M'Call,  and 
G.  H.  Powell ;  Sir  Saul  Samuel,  Agent-General  for  New  South 
AVales  •  Mr.  J.  F.  Garrick,  Q.C.,  Agent-General  for  Queensland ; 
Sir  Francis  Bell,  Agent-General  for  New  Zealand  ;  Captain  Charles 
Mills,  Ao-ent-General  for  the  Cape  of  Good  Hope ;  Alderman 
Atkinson,  Hull ;  Mr.  Pearce,  Glasgow  Chamber  of  Commerce  ;  and 
Mr.  Kenric  B.  Murray,  secretary  of  the  London  Chamber  of 
Commerce. 

The  Chairman,  in  opening  the  proceedings,  observed  that 
from  a  communication  he  had  received  from  a  very  prominent 
shipowner,  he  thought  there  was  some  misapprehension  as  to  the 
scope  and  object  of  that  meeting.  It  seemed  to  have  been  con- 
sidered that  they  were  going  to  hold  a  kind  of  indignation 
meeting  in  opposition  to  shipowners.  That,  however,  was  an 
entire  mistake.  The  shipowners  themselves  had  held  several 
meetings  to  ascertain  what  their  views  were  on  the  subject,  and 
the  present  meeting  would  endeavour  to  do  the  same  as  regarded 
the  shippers.  He  had  received  a  letter  from  Mr.  Hubbard,  the 
member  for  the  City,  who  wrote  as  follows : — 

'For  sometime  past  I  have  observed  a  gradual  movement  on 
the  part  of  shipowners  to  diminish,  and  even  cancel,  the  liability 
heretofore  held  to  attach  to  them  as  carriers  of  the  goods  they 
received  on  freight.  "With  this  object,  clauses  have  been  inserted 
in  bills  successively  enlarging  the  excepted  causes  of  loss  and 
damage  until  they  attain  for  the  shipowner  an  almost  perfect 
indemnity,  notwithstanding  that  the  occurrence  of  such  loss  or 
damage  may  be  distinctly  traceable  to  the  neglect  or  the  mis- 
conduct of  the  captains  or  crews.  It  is  easy  to  discover  an  origin 
for  this  movement  in  the  increased  size  and  costliness  of  the 
mercantile  marine,  in  the  rapidity  of  the  voyages  performed,  in  the 
value  of  time,  in  the  employment  of  vessels  representing  a  large 
capital,  and  in  the  fref|uont  changes  of  captain  and  crew  which 
may  ■|)roba1)ly  occur.  'I'liese  considerations,  while  explaining  the 
anxiety  of  shipowners  to  avoid  responsibility,  cannot  satisfy 
nicrchantH  of  the  wisdom   of  this  mnv  policy,  or  of  the  fairness 


INTERNATIONAL  LAW   OF  AFFREIGHTMENT.  4Jl 

with  wliich  it  lias  been  advocated.  The  fuudamental  principle 
that  an  employer  of  luhour  is  rosponsiljle  for  the  acts  of  his  agent 
in  regard  to  the  work  for  which  lie  is  engaged,  cannot  be  set  aside 
for  the  convenience  of  the  employer  without  detriment  to  the  com- 
rannity,  and  the  legal  axiom,  Qui  facit  j^er  alium  facit  per  se,  is 
strictly  applicable  to  the  owner  as  acting  through  the  captain,  and 
by  the  captain  through  the  crew,  8ome  shipowners,  indeed,  have 
repudiated  this  liability,  and  renounced  any  pretence  of  control  over 
the  captain,  but  this  fantastic  pretence  is  cancelled  by  the  fact  of 
ownership,  which  they  unequivocally  admit  in  their  title  to  the  ship, 
and  their  receipt  of  its  earnings.  An  irresponsible  ownership  is  a 
contradiction  not  to  be  tolerated.  I  sincerely  trust  that  an  amicable 
conference  of  shippers  and  shipowners  may  eventuate  in  a  satis- 
factory adjustment  of  the  conflicting  views,  and  that  this  desirable 
result  may  be  forthwith  attained  without  waiting  for  the  report  of 
the  Royal  Commission,  indefinitely  protracting  the  settlement  of 
a  question  to  the  solution  of  which  it  is  wholly  unnecessary.' 
He  thought  those  views  commended  themselves  to  the  mind  of 
every  one  present.  A  bill  of  lading  ought  to  be  the  same  thino-  as 
the  goods  themselves.  It  ought  to  be  precisely  the  same  thino-  as 
a  deed  for  the  conveyance  of  land,  or  a  bill  of  exchange  representino- 
a  commodity.  There  ought  to  be  absolute  certainty  about  a  bill  of 
lading.  There  should  be  no  uncertainty  as  to  the  delivery  of  the 
goods,  or  as  to  who  was  responsible  if  the  goods  were  not  delivered. 
The  liability  of  shipowners  and  of  underwriters  ought  to  be  fixed 
and  ascertained  ;  and  it  was  for  the  benefit  and  advantage  of 
public  ix)licy,  for  the  benefit  and  advantage  of  trade  in  general, 
and  of  the  different  classes  engaged  in  trade,  that  such  certainty 
should  be  absolute.    Bankers  who  advanced  on  bills  of  ladinp"  ouo-ht 

CD  to 

to  be  jierfectly  certain  that  their  advances  were  not  on  pieces  of 
paper,  but  on  goods.  They  would  not  expect  him  to  go  through 
the  different  ways  in  which  a  shipowner  might  be  affected,  but  he 
believed  that  at  the  present  moment  there  was  one  particular 
liability  which  the  shipowner  felt  very  strongly  upon,  and  about 
which  there  was  undoubtedly  some  and  perhaps  a  good  deal  of 
question — that  was  his  liability  for  the  acts  of  his  servants.  Too 
little  responsibility,  however,  would  engender  carelessness,  which 


422  MARITIME   LEGISLATION. 

could  not  be  for  the  advantage  of  the  nation  at  large.  On  the 
other  hand,  it  might  be  said  that  if  you  require  over-responsibility, 
it  may  become  an  illusion,  and  he  believed  that  it  was  so  in  many 
cases  now.  This  condition  of  things  was  not  to  the  interest  of  any 
one  either.  The  present  bills  of  lading  were  not  what  they  ought 
to  be.  He  had  seen  one  bill  of  lading — he  admitted  that  it  was  in 
a  very  small  trade — as  to  which  he  asserted  that  the  only  liability 
upon  the  shipowner  was  to  receive  the  freight.  There  was  no 
liability  on  him  to  carry  or  deliver  the  goods.  That  was  not  a 
right  state  of  things.  Many  were  anxious  that  whatever  bill  of 
lading  was  arrived  at  it  should  be  uniform.  He  was  not  prepared 
to  say  that  it  was  absolutely  impossible  to  make  a  uniform  bill  of 
lading,  but  he  did  think  that  it  was  quite  possible  that  there  might 
be  particular  trades  in  which  particular  bills  of  lading  were  re- 
quired. As  to  the  Roj'al  Commission,  Mr.  Hubbard  was  strongly 
against  any  legislative  interference  in  trade  which  could  be  avoided. 
He  (the  Chairman)  felt  convinced  that  if  the  meeting  appointed  a 
conunittee  to  meet  the  shipowners,  and  the  two  parties  could  agree 
upon  a  bill  of  lading,  the  Royal  Commission — if  it  were  necessary 
to  submit  the  arrangement  to  them — would  jump  at  the  oppor- 
tunity of  being  saved  the  trouble  which  they  might  otherwise  have. 
Mk.  Keene  moved  the  first  resolution  as  follows  :  '  That  this 
meeting,  representing  mei'cantile  interests,  is  of  opinion  that  the 
bills  of  lading  in  force  at  the  present  time  are,  in  many  cases, 
unacceptable  to  merchants,  in  consequence  of  the  clauses  exone- 
rating shipowners  from  their  liabilities.  It  is  urgent  that  some 
satisfactory  modification  of  these  bills  of  lading  should  be  agreed 
upon,  and  witli  that  \ifw  this  meeting  resolves  that  a  committee 
be  appointed  lo  confer  witli  shipowners  and  others  interested  on 
the  subject.'  Formt-rly.  he  said,  a  bill  of  lading  was  a  simple 
receipt  given  liy  llir  ciqjtain  (n-  ownei'  by  whieh  lie  undertook  to 
ileliver  goods  in  the  same  order  and  condition  in  which  he  had  re- 
ceived them,  certain  contingencies  excejited — 'the  act  of  Cod  and 
the  perils  of  tlie  sea.'  A  steamshij*  bill  cf  lading  now,  however, 
contained  clauses  enuinerat  ing  e\'ery  eeneei\  iilile  thing  wliieli  might 
cause  loss  or  damage  to  goods,  exenijit  ing  the  shi|iit\\  mr  IVoni  all 
jiiibiljty  arij-ing  out  of  them.      lie  mnintiiined  lli;;l  >lii|  ]ie)-s  had  no 


INl'ERXATKJXAL   LAW   OF   AFFREIGHTMENT.  423 

freedom  uf  coutracf.  witli  the  shipowners.  He  did  not  wish  to  go 
into  politics,  but  in  the  .\rercliaut  Shipping'  Hill  of  lust  session 
there  were  four  clauses  which  would  have  helped  merchants  con- 
siderably. He  thought  it  unadvisable  to  wait  for  legislation.  If 
the  Rt»yal  Commission  were  to  report  that  it  was  advisable  to  make 
a  bill  of  lading,  he  did  not  believe  that  the  House  of  Commons 
■would  make  a  bill  of  lading  for  them.  In  the  second  part  of  his 
resolution  a  compromise  was  proposed,  and  he  believed  that  much 
good  would  come  out  of  the  proposed  committee.  The  international 
bill  of  lading  of  1882  and  the  New  York  Produce  Bill  of  Lading, 
which  was  based  upon  the  international  bill,  were  far  from  perfect, 
but  if  they  were  taken  as  a  starting-point  by  the  committee  he 
thought  something  might  be  made  out  of  them. 

Sir  Francis  Bell  seconded,  and  Mr.  M-Axdrkw  supported,  the 
motion. 

Mr.  Stephen  IIalli  also  supported  the  motion.  He  referred 
to  the  discussions  which  had  already  taken  place  upon  the  subject, 
and  observed  that  at  '  the  Baltic,'  where  a  great  many  merchants 
and  shipowners  met  daily  for  the  transaction  of  their  business,  the 
question  had  been  fully  debated,  and  he  was  glad  to  state  that  he 
believed  some  partial  agreement  had  been  already  come  to  between 
the  two  parties.  He  believed  they  might  consider  as  certain  that 
{shipowners  would  in  future  accept  their  liability  on  the  arrival  of 
goods  for  damage.  The  most  difficult  question  had  been  in  con- 
nection with  losses  arising  from  errors  of  navigation.  As  regarded 
the  pilots,  shipowners  had  pointed  out  that,  although  they  were  paid 
by  them,  and  were  legally  their  servants,  yet  they  ought  not  to  be 
responsible  for  losses  arising  from  the  pilots'  acts.  In  that  view 
lie  must  say  that  mei'chants  generally  concurred,  because,  although 
tiie  ])ilots  were  legally  the  agents  of  the  shipowners,  the  latter  did 
not  choose  them,  and  were  obliged  to  take  on  board  the  pilots  who 
presented  themselves.  If  that  great  concession  were  made  by  the 
mercantile  community,  it  ought  to  be  appi'eciated  by  the  ship- 
owners. He  believed  that  he  was  in  agreem<'nt  with  the  feeling 
of  the  great  majority,  if  not  the  whole,  of  the  mercantile  com- 
munity in  saying  that  they  would  go  a  step  further,  and  would  be 
willing  to  exempt  shipowners  from  loss  arising  from  erroi-sof  judg- 


4->4  MARITIME   LEGISLATION. 

nieut  on  the  part  of  tlieir  officers;  but  lie  hoped  they  would 
never  agree  to  exempt  them  from  loss  arising  from  the  culpable 
ueo-lio-ence  or  misconduct  of  their  captains  or  officers.  If  ship- 
owners  were  exempted  from  loss  arising  from  the  last-mentioned 
causes  some  of  them — the  worst  of  them — would  engage  at  smaller 
wao-es  an  inferior  set  of  men,  a  proceeding  which  would  lead  to 
increased  loss  of  ships  and  life  at  sea.  The  best  proof  of  the  un- 
fairness of  this  bill  of  lading  was  that  the  British  Government  had 
declined  to  accept  clauses  in  it  to  which,  however,  shippers  were 
obliged  to  submit. 

Mr.  Harris,  M.P.,  in  suj^porting  the  resolution,  spoke  of  the 
advantagfes  of  the  similaritv  of  contract  which  had  been  established 
iu  the  grain  trade,  and  said  he  thought  there  ought  to  be  similar 
agreement  about  bills  of  lading. 

Mr.  Hollams  (solicitor)  thought  it  remarkable,  in  view  of  the 
excited  discussion  which  had  taken  place,  that  thei-e  had  been  no 
change  in  the  law.  Until  twenty  years  ago  it  was  suj^posed  that 
accidents  from  collisions  and  errors  of  judgment  protected  the 
shipowner  as  being  dangers  of  the  sea,  but  the  Court  decided  about 
twenty  years  ago  that  that  was  not  so,  and  that  the  shipowner  was 
liable.  This  decision  had  brought  about  this  state  of  things — 
that,  notwithstanding  that  tlie  merchant  was  protected  by  his 
underwriter,  the  shipowner  was  liable ;  and  the  underwriter,  on  " 
paying  the  loss,  became  entitled  to  the  rights  of  the  shipper 
against  the  .shipowner.  He  believed  that  the  cause  of  all  the 
irritation  had  arisen  from  this  modern  practice.  Although  in  law 
there  was  no  difference,  there  was  practically  a  good  deal  of  differ- 
ence between  negligence  and  error  of  judgment,  and  he  thought  a 
vast  distinction  ought  to  be  made  between  the  two. 

^Ih.  Stkintiial  (^'ice-President  of  the  Manchester  Chamber  of 
Commerce)  stated  that  at  ^lanchester  they  looked  upon  the  cpiestion 
o*  bills  of  lading  as  rather  one  between  shipowners  and  under- 
writers, because  the  merchants  were  in  the  habit  of  insuring  the 
goods  and  nf  recovering  fioiu  the  uiulerwritcrs,  even  to  the  smallest 
Particular  Average,  any  loss  they  might  sustain.  He  afterwards 
testified  as  a  sliipper  to  the  unfair  clauses  contained  in  bills  of  lading, 

.Ml!.    L.   Walkkr  (of  Dundee)  and  Mr.  J.  F.  CahIvRK.  Q.C, 


INTERNATlOxXAL   LAW   OF  AFFREIGHTMENT.  425 

also  supported  the  motion,  tlie  latter  gmitleman  expressing  an 
opinion  that,  generally,  those  matters  which  were  within  the  con- 
trol of  the  shipper  might  fairly  stand  in  the  bill  of  lading,  exempt- 
ing the  shipowner.  Tlie  acts  over  which  the  shipowner  had 
control  were  very  large,  and  there  were  losses  which  arose  from 
culpable  negligence  and  those  which  arose  from  error  of  judgment. 
These,  he  thouerht,  were  matters  for  mutual  consideration  between 
the  shipowner  and  the  shipper.  There  were  certain  matters,  in 
his  opinion,  where  they  must  appeal  to  the  State. 

After  a  few  remarks  from  Mr.  M'Ausland  (J.  Connell  &  Co.) 
and  Mr.  Reinhold  (of  Calcutta)  the  resolution  was  passed. 

Mr.  J.  A.  EwEN  (Sargood,  Son,  &  Co.)  proposed  the  next  resolu- 
tion :  '  That  the  following  gentlemen  be  appointed  as  a  committee, 
with  power  to  add  to  their  number,  and  with  power  to  amalgamate 
with  existing  committees:  —  Messrs.  J.  Macandrew  (Matheson  & 
Co.),  Victor  Benecke  (Benecke,  Souchay,  &  Co.),  W.  A  damson 
(Adamson,  Gillillan,  &  Co.),  Halton  (T.  A.  Gibb  &  Co  ),  H.  lleinhold 
(Reinhold  &  Co.,  Calcutta),  J.  A.  Ewe  (Sargood,  Son,  &  Co.),  H.  M. 
Steinthal  (Delegate  from  the  Manchester  Chamber  of  Commerce), 
E.  Majolier  (Harris  Brothers),  William  Dunn  (W.  Dunn  &  Co., 
South  Africa),  and  J.  G.  Pitcairn.'  He  expressed  his  belief  that  the 
resolution  would  open  up  the  means  of  an  equitable  adjustment 
between  all  parties.  The  subject  had  been  approached  in  no  hostile 
spirit  to  the  shipowners. 

Mr.  Y\.  G.  Sofer  seconded  the  motion,  which  was  carried, 
the  name  of  Mr.  Paterson  (IMessrs.  Carter,  Paterson  &  Co.)  being 
added  to  those  mentioned. 

Mr.  Power  next  proposed,  and  Mr.  Majolier  seconded,  the 
third  resolution,  as  follows:  'That  this  meeting  considers  it  de- 
sirable that  in  all  charter-parties  and  bills  of  lading  an  arbitration 
clause  should  be  inserted.' 

The  resolution  was  carried  with  two  dissentients. 

On  the  motion  of  j\1r.  Pitcairn,  seconded  by  Mr.  P.  HiRscii- 
FELD,  a  vote  of  thanks  was  passed  to  the  Chairman,  and  the 
proceedings  then  terminated. 

There  was  a  furtlier  proof  o-lveii  liow  tlie  pri]ici])al 
ilnn^    <)['   the    niercaulile    coinniuiiiiv  of   ihh    ijrcat    cilv 


420  MAEITDIE    LEGISLATIOX. 

looked  anxiously  forward  for  a  satisfactory  settlement  of 
this  most  vexed  question  by  their  addressing  the  following 
requisition  to  the  President  of  the  Eoyal  Commission  on 
Loss  of  Life  at  Sea,  which  was  at  that  time  occupied  in 
taking  evidence  : — 

To  the  IiKjht  Ilonoarahle  the  Earl  of  Aberdeen^  President  of  the 
L'oi/al  Commiiision  on  Merchant  Shippimj. 

"We.  the  uudersigued,  bankers,  merchants,  and  brokers  of  the 
city  of  London,  desire  to  see  a  uniform  bill  of  lading  adopted  by 
the  owners  of  British  steamships  and  sailing  vessels. 

The  present  system  of  multiform  bills  of  lading  is  found  to  be 
inconvenient  and  unsatisfactory  by  all  members  of  the  mercantile 
community. 

Shipowners  have  recently  proposed  a  form  as  basis  of  a  bill  of 
lading  for  general  adoption,  but  as  the  clauses  of  the  bill  of  lading 
are  involved  in  the  questions  referred  to  the  llo3'al  Commission, 
shippers,  while  granting  that  uniformity  is  to  be  desired,  hesitate 
to  take  definite  action  in  the  matter,  in  view  of  the  exhaustive 
consideration  of  the  subject  by  the  Royal  Commission  under  your 
lordship's  presidency. 

Shipowners,  though  not  denying  that  such  hesitation  is  proper, 
plead  that  the  question  is  a  burning  one  requiring  prompt  solution, 
and  we,  on  our  part,  are  desirous  to  have  it  settled  as  soon  as  possible 
upon  principles  sanctioned  by  authority. 

A\'e  are,  therefore,  of  opinion  that  great  satisfaction  will  be  felt 
by  ihe  mercantile  community  if  the  Iloyal  Commission  ^vill  give 
priority  in  its  deliberations  to  the  consideration  of  any  questions 
the  settlement  of  which  the  Commission  may  think  a  necessary 
prfliminai'v  to  tin-  adoption  of  a  uniform  bill  of  lading,  and  that, 
if  possible,  a  special  report  should  be  made  on  the  subject. 

There  is  a  general  desire  in  all  countries  to  have  an  internal  ional 
bill  of  liidinjL'",  and  it  is  proljable  th;it  the  recommendations  of  a 
Koyal  (Vtnniiission  would  Ix-  accepted  by  other  countries  as  a  basis 
foi-  agreement. 

h('>id('>    these    exj)!-e»i()ii>    of    ilie    Narious    iiitci'oled 


INTEKNATIOiNAL    LAW   OF   AFFREIGHTMENT.  Jl>7 

oijiiiious,  the  public  press  aliuosl  daily  during  llie  fu-st  few 
months  of  1885  contained  letters,  giving  arguments  for 
and  against  the  concession  of  n()n-lial)ilily  to  slii[)(>\viiers 
for  the  ne<rliii"ence  of  the  master  and  crew  of  their  vessels. 
One  of  the  best  arguments  found  in  these  letters  was  in 
these  words  :  '  Do  not  withdraw'  from  the  only  persons  who 
can  efTectually  influence  the  conditions  of  navigation,  an 
important  incenti\e  to  care  and  vigilance,  by  acquiescing 
in  a  claim  so  exceptional  as  that  shipowners  alone,  of  all 
employers  of  labonr,  shall  not  be  held  answerable  for  the 
negligence  and  incapacity  of  those  they  employ.'  Nobody 
can  assert  that  any  shipowner  is  bound  to  engage  the  first 
master,  mate,  engineer,  or  other  officer  who  presents  his 
certificate  of  competency  from  the  Board  of  Trade.  He 
has  the  choice  among  those  who  come  forward,  who, 
although  equally  qualified  in  the  eye  of  the  law,  do  not 
have,  in  virtue  of  their  certificate  of  competency,  the  right 
to  claim  the  first  vacancy. 

They  must,  and  should,  submit  to  the  scrutiny  of  those 
whose  patronage  and  employment  they  seek.  Does  it  not 
stand  to  reason,  and  should  it  not,  as  a  matter  of  plain 
common  sense,  be  assumed  that  the  greater  the  liability 
which  would  fall  upon  the  employer,  the  shipowner, 
through  the  neglect  or  incapacity  of  those  he  employs, 
the  greater  will  be  the  incentive  for  him  to  employ  compe- 
tent officers,  who,  in  order  to  retain  the  confidence  of  their 
employer,  and  consecpiently  the  means  of  earning  a  re- 
spectable livelihood,  would  be  obliged  to  exercise  the 
<*:reatest  viu'ilance  and  care  in  the  navigation  of  the  vessel. 
On  the  other  hand,  if  nobody  but  an  unknown  merchant 
or  his  still  less  known  underwriter  has  to  l)ear  the  conse- 
(|uen<'es  of  neglect,  how  easv  would  be  the  inclination  to 
forget  the  dnty  to  (Mnplo\-  ti-ustworlhy  >cr\ants. 

The   coniniittce  which  at    the  nieetini:"  at  'the  J^altic' 


42S  MARITIME   LEGISLATION. 

was  appointed  for  the  consideration  of  this  (piestion  came 
to  the  conchision  tliat  the  principal  clanse  under  discussion 
should  be  worded  as  follows  : —     ■ 

'  Stranduigs  and  collisions,  and  all  losses  and  damages  caused 
thereby,  are  also  excepted,  even  when  occasioned  by  negligence, 
default,  or  error  in  judgnient  of  the  pilot,  master,  mariners,  or  other 
servants  of  the  shipowners,  but  nothing  herein  contained  shall 
exempt  the  shipowner  from  liability  to  pay  for  damage  to  cargo  oc- 
casioned by  bad  stowage,  by  improper  or  insufficient  dunnage  or 
ventilation,  or  by  improper  opening  of  valves,  sluices,  and  ports,  or 
by  causes  other  than  those  above  excepted,  and  all  the  above  excep- 
tions are  conditional  on  the  vessel  being  seaworthy  when  she  sails 
on  the  voyage,  but  any  latent  defects  in  the  machinery  shall  not  be 
considered  unseaworthiness  provided  the  same  do  not  result  from 
want  of  due  diligence  of  the  owners,  or  any  of  them,  or  by  the 
ship's  husband  or  manager.' 

The  'Times'  of  July  25,  1885,  gave  the  following 
report  of  the  meeting  sunnnoned  to  consider  the  subject : — 

"^'esterday  a  meeting  was  held  at  the  Baltic  Coffee-house,  Thread- 
needle  Street,  to  receive  the  report  of  the  committee  appointed  last 
February  to  consider  the  subject  of  bills  of  lading  and  proposed 
charges  therein.  The  chair  was  taken  by  the  Right  Hon.  J.  G. 
Hubbard,  M.P.,  and  besides  the  whole  of  the  members  of  the  com- 
mittee there  was  a  large  attendance  of  the  members.  The  com- 
mittee consisted  of  Messrs.  S.  W.  Keene  (S.  W.  Keene  &  Co.), 
T.  V.  S.  Angler  fAngier  Brothers),  James  Dixon  (Harris  & 
Dixon),  A.  G.  J*himorphopulos  (Scaramanga,  Manoussi,  &  Co.), 
John  Glover  (Glover  Ih-othcrs),  E.  1*.  Maxsted  (Keighley,  Maxsted, 
&  Co.,  Hull),  William  Milburn,  Jan.  (Wilham  Milburn  &  Co.), 
W.  Muller  a.  G.  ili.l)bard  &  Co.),  J.  Ross  (Begbies,  Ross,  & 
GiljsonJ,  0,  \';tlirii  (.Mavro,  A'alieri,  &  Co.),  J.  Watson  (Watson, 
Mrdill,  &  Co.),  J.  n.  Watt  (.).  B.  Watt  &  Co.),  and  E.  H.  Watts 
(Watts,  Ward,  &  Co.).  'J'lic  icpoi-f  of  Ihc  committee  stated  that 
ihey  had  held  fourteen  meetings,  and  had  given  tlie  matter  their 
most  careful  consideration.     At  an  early  stage  of  their  labours  they 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  4'2'J 

were  forced  to  come  to  the  conclusion  that  the  varying  circum- 
stances of  different  trades  rendered  it  impossible  to  agree  on  any 
form  of  bill  of  lading  tliat  would  exactly  suit  all  countries,  and  they 
luid  therefore  endeavoured  to  frame  forms  suitable  for  the  Black  Sea, 
Danube,  Mediterranean,  and  Baltic  trades.  They  had  unanimously 
agreed  to  recommend  for  use  in  these  trades  two  forms,  one  adapted 
for  full  cargoes  of  grain,  the  other  for  mixed  cargoes  and  general 
merchandise.  The  Chairman,  in  opening  the  proceedings,  stated 
that  the  object  of  the  committee  had  been  to  make  trading  easier 
and  safer,  and  to  put  an  end  to  the  conflicts  which  always  arose  in 
connection  with  the  existing  bills  of  lading.  Mr.  Valieri  proposed 
the  following  resolution  :  '  That  the  two  forms  of  bills  of  lading  as 
framed  by  the  committee  be  accepted  and  adopted  for  general  use 
in  the  trades  named,  by  both  merchants  and  shipowners,  on  and 
after  September  1  next.'  He  had,  he  said,  come  to  the  conclusion 
that  conciliation  was  the  true  policy  between  the  various  parties, 
and  he  regarded  the  concessions  made  to  the  shipowners  as  rea- 
sonable and  fair.  Mr.  John  Glover,  in  seconding  the  motion,  ob- 
served that  what  was  proposed  was  a  fair  compromise  between  all 
parties.  Mr.  Roth  (Credit  Lyonnais)  moved  an  amendment  pro- 
posing in  effect  a  bill  of  lading  of  his  own  composition.  No  one, 
however,  would  second  the  amendment,  which  therefore  fell  through, 
and  the  resolution  was  adopted  with  a  few  dissentients.  On  the 
motion  of  Mr.  E.  H.  Watts,  seconded  by  Mr.  John  Ross,  the  fol- 
lowing resolution  was  also  passed  :  *  That  a  copy  of  the  first  resolu- 
tion, together  with  the  two  forms  of  bills  of  lading,  be  sent  to  the 
Committee  of  Lloyd's  and  to  underwriters  generally.' 

Substantially  the  changes  which  are  effected  by  these  new  docu- 
ments are  to  define  more  clearly  the  liability  of  the  shipowner  for 
damage  occasioned  to  cargo  by  bad  stowage,  improper  dunnage, 
insufficient  ventilation,  improper  opening  of  valves,  and  by  the 
unseaworthiness  of  the  vessel.  Complaint  had  been,  made  that  by 
some  bills  of  lading,  which  had  come  into  extensive  use,  shipowners 
had  exempted  themselves  from  liabilities  arising  out  of  these  causes 
for  which  they  ought  fairly  to  be  held  responsible.  On  the  other 
hand,  the  complaint  made  by  shipowners,  that  they  had  been 
recently  held  answerable  for  losses  which  occurred  at  sea  through 


430  MARITLME    LEGISLATION. 

mistakes  and  errors  of  juclgnieut  of  pilots  and  master  mariners,  and 
from  collisions— all  of  which  were  quite  bej-ond  the  shipowner's 
control — has  been  met  by  the  use  of  language  which  has  made  it 
clear  that  such  losses,  arising  out  of  strandings  and  collisions,  are 
to  be  treated  as  common  sea  perils.  Briefly,  the  parties  concerned, 
instead  of  waiting  for  relief  by  legislation,  which  might  not  come, 
have  taken  the  course  of  agreeing  among  themselves  as  to  the  most 
suitable  documents  on  which  to  carry  on  their  business. 

No  surprise  need  be  felt  that  sucli  Chambers  of  Com- 
merce and  underwritino-  bodies  as  were  not  convinced  by 
the  arguments  brought  forward,  that  the  freedom  of  con- 
tract should  be  allowed  to  any  shipowner  to  contract  him- 
self out  of  his  legal  obligation  to  be  answeral)le  for  the 
neo"lect  or  default  of  his  master  or  crew,  should  trv  to  re- 
open  the  discussion  of  this  subject  on  more  neutral  territory. 
The  Senate  of  the  Hanse  town  of  Hamburg  having  invited 
the  Association  for  the  Eeform  and  Codification  of  the  Law 
of  Nations  to  hold  their  (tenth)  conference  in  that  city  on 
August  18,  1885,  it  was  accordingly  publicly  announced 
that  this  question  would  be  again  fully  considered. 

On  that  day,  under  the  presidency  of  Dr.  Fred. 
Sieveking,  the  President  of  the  Hanseatic  Court  of  Appeal, 
the  subject  was  introduced  by  my  presenting  the  following 
report  on  the  International  Law  of  Affreightment  and  Bills 
of  Lading  : — 

Some  surprise  has  been  expressed  that,  although  the  delibera- 
tions at  our  Liverpool  Congress  (1882)  resulted  in  the  adoption 
of  a  form  of  bill  of  lading  intended  to  be  used  by  the  mercantile 
and  ship-owning  community  of  the  world,  the  executive  council 
of  this  Association  has  deemed  it  advisable  to  re-open  this  impor- 
tant sul)joct  at  the  present  conference.  It  therefore  devolves  upon 
me  as  fhaii-iuan  oft  he  Bill  of  Lading  and  Affreightment  Committee, 
to  explain  the  circumstances  which  have  influenced  the  council 
in  so  df'ciding. 


INTEKNATIUXAL    LAW   OF   AFFHEIlillTMEXT.  431 

It  may  be  in  the  recollection  of  the  members  of  this  Associa- 
tion that  at  our  Milan  conference  (1883)  Dr.  Stubbs,  as  hon.  sec- 
retary of  that  committee,  reported  that,  although  the  draft  bill  of 
lading  adopted  at  the  Liverpool  conference  had  been  most  favour- 
ably received  in  some  quarters,  it  had  also  met  with  considerable 
opposition  in  others,  and  that  while  he  laid  upon  the  table  a  pam- 
phlet describing  the  work  of  the  committee  during  the  preceding 
3^ear,  he  at  the  same  time  presented  resolutions  signed  by  the 
leading  insurance  companies  of  London,  and  all  the  insurance 
companies  of  New  Zealand  and  Australia,  formally  protesting 
against  the  adoption  of  any  bill  of  lading  for  general  use  which 
would  release  the  shipowners  from  liability  for  the  negligence  of 
the  master  or  crew.  These  resolutions,  AA-hich  were  practically  of 
an  identical  tenor,  concluded  with  the  statement  '  that  any  at- 
tempt to  bring  about  or  perpetuate  such  relief  will  meet  with  our 
strenuous  opposition.' 

The  pamphlet  just  referred  to  contains  the  report  of  the  com- 
mittee on  bills  of  lading  appointed  by  the  New  York  Produce  Ex- 
change, dated  May  1883,  in  which  the  Liverpool  form  of  bill  of 
lading  is  criticised,  and  another  form,  differing  considerably  in  its 
details,  is  proposed  in  its  stead. 

This  was  not  all.  Not  only  have  the  Chambers  of  Commerce 
and  the  boards  of  underwriters  on  the  Continent  awakened  to  the 
very  dangerous  innovations  attempted  by  the  Liverpool  Bill  of 
Lading,  but  the  Chamber  of  Commerce  of  the  State  of  New  York, 
the  National  Board  of  Marine  Underwriters  at  New  York,  and  other 
public  bodies  in  the  United  States,  have  had  their  attention  called 
to  the  subject.  Their  opinion  on  the  subject  can  best  be  explained 
by  my  quoting  the  opening  sentences  of  the  rej)ort  of  the  special 
committee  on  International  Bills  of  Lading  of  the  New  York 
Chamber  of  Commerce,  dated  June  5,  1883.  These  run  as 
follows : — 

'  The  multiform  bills  of  lading  in  existence  (if  the  objectionable 
clauses  are  taken  collectively)  are  tantamount  to  giving  the  owner 
of  merchandise  no  obligation  on  the  part  of  the  ship  to  perform 
(mythingj  and  risks  are  excepted  which  are  not  recognised  as 
insured  in  the  printed  forms  of  the  policies  of  marine  insurance 


43->  MARITIME   LEGISLATION. 

companies.  Some  forms  of  bills  of  lading  are  not  so  obnoxious  as 
others  bat  in  nearly  all,  the  risks  excepted  and  the  conditions 
imposed  are  such,  that  the  merchant,  who  thinks  he  has  insured 
his  ffoods  finds,  upon  examination,  that  he  has  not  insured  against 
the  exceptions  and  conditions  of  the  bill  of  lading  he  receives. 

'  Your  committee  find,  virtually,  that  nearly  every  line  has 
promptly  followed  the  example  of  that  one  which  first  began  the 
innovation.  Like  all  social  evils,  the  magnitude  and  heinousness 
have  become  so  great,  that  some  amelioration  must  be  granted  by 
the  authors,  or  else  the  indignation  of  the  mercantile  world  will 
soon  evolve  a  worse  result  to  the  vessel-owners  than  any  of  the 
liabilities  they  thus  seek  to  avoid.  It  is  the  apprehension  of  some 
such  result  that  has  prompted  the  friends  of  the  steamship  lines 
to  bring  before  the  conference  upon  international  law  in  Great 
Britain  this  subject,  and  a  proposal  that  a  form  of  bill  of  lading 
should  be  constructed  which  should  be  adapted  to  the  present  re- 
quirements of  trade,  and  which,  while  granting  every  fair  conces- 
sion to  shipowners,  will  serve  to  protect  the  shipper  of  cargo  from 
risks  to  which  he  should  not  be  subjected,  and  which  properly 
should  be  assumed  by  the  shipowner.' 

From  the  different  reports  since  published  by  this  bod}-,  it 
appears  that  very  considerable  care  has  been  taken  in  elucidating 
the  subject  in  general,  and  the  law  as  administered  by  the  United 
States  Courts  in  particular,  and  with  respect  to  the  latter  I  may 
be  permitted  to  quote  from  the  judgment  delivered  on  July  31, 
1881,  by  the  Hon.  Samuel  Blatchford,  Justice  of  the  Supreme 
Court  of  the  United  States,  in  the  well-known  case  of  the  '  j\Ion- 
tana,'  the  following  sentence  : — 

'  In  view  of  all  these  cases,  it  holds  that  a  carrier  having  a 
regularly  established  business  for  carrying  all  or  certain  articles, 
and  especially  if  that  carrier  be  a  corporation  created  for  the 
purpose  of  the  carrying  trade,  and  the  carriage  of  the  article  is 
embraced  within  the  scope  of  its  chartered  powers,  is  a  common 
carrier  ;  that  a  special  contract  about  its  responsibility  does  not 
divest  it  of  that  character;  that  it  cannot  be  permitted  to  stipulate 
for  imniunity  for  the  negligence  of  its  servants  ;  that  the  business 
of  u  carrier  is  a  public  one,  and  those  who  employ  tlio  cai'rier  have 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  43:{ 

no  real  freedom  of  clioicc,  and  the  carrier  cannot  be  allowed  to 
in^pose  conditions  adverse  to  public  policy  and  morality  ;  that  free- 
dom from  liability  for  losses  through  sheer  accident  or  dangers  of 
navigation,  which  no  human  skill  or  vigilance  can  guard  against, 
or  for  losses  of  money  or  valuable  articles  liable  to  be  stolen  or 
damaged,  unless  apprised  of  their  cliaracter  or  value,  or  for  like 
cases,  is  just  and  reasonable,  and  may  be  stipulated  for,  but  that  a 
public  carrier  cannot  stipulate  for  exemptions  which  are  unreason- 
able and  improper,  and  which  amount  to  an  abdication  of  the 
essential  duties  of  his  employment ;  that  a  stipulation  for  exemp- 
tion from  liability  for  negligence  is  not  just  or  reasonable;  that  a 
failure  to  exercise  such  care  and  diligence  as  are  due  from  the 
carrier  is  negligence,  and  that  tlie  carrier  remains  liable  for  the 
negligence  if  the  exemption  stipulated  for  is  unlawful.' 

In  such  circumstances  no  surprise  can  be  felt  that  the  United 
States  Government  has  been  requested  to  move  its  Legislature  to 
pass  such  an  enactinent  as  would,  without  the  necessity  of  going 
to  law  in  individual  cases,  protect  the  owners  of  goods  from  the 
desire  of  the  shipowner  to  avoid  his  legal  obligation. 

And  after  detailing  the  already  above  referred  to 
circumstances  under  which  the  Act  of  February  3,  1885, 
passed  the  House  of  Representatives  at  Washington,  I 
continued : — - 

From  this  enactment  it  will  be  seen  that  the  introduction  of  an 
international  bill  of  lading  is  possible  only  if  the  principal  objection 
to  the  Liverpool  form,  i.e.  with  regard  to  the  non-liability  of  the 
shipowner  for  the  negligence  of  the  master  and  crew,  is  conceded. 
How  little  chance  there  has  hitherto  been  of  obtaining  this  object 
may  be  gathered  from  the  lively  discussions  which  have  recently 
taken  place  on  this  subject  at  the  meetings  at  Lloyds,  at  the 
Baltic,  and  elsewhere  in  the  city  of  London,  and  the  different 
letters  which  have  appeared  in  the  public  press  since  the  month  of 
February  last. 

I  ought  not  to  omit  to  state  that  Dr.  Joh.  Fr.  Voigt  at  Ham- 
burg, formerly  a  Judge  at  tlie  High  Court  of  Ajipeal  in   Leipzig, 

F  1' 


^34  MArjTIME    LEGISLATION. 

prepared  an  opinion  for  the  la^t  conference  of  German  jurists  on 
this  subject,  in  which  he  upholds  the  contention,  in  which  I  fully 
concur  tliat  it  is  not  equitable  to  concede  to  the  shipowner  tlie 
much  desired  non-liability  for  the  negligence  of  the  master  and 
crew. 

As  it  can  hardly  be  denied  that  at  the  present  moment  the  laws 
of  the  whole  world  are  identical  on  this  subject,  the  surprise  may 
easily  be  understood,  which  was  generally  felt,  that  the  shipowners 
of  this  country  had  succeeded  in  carrying  the  Liverpool  Bill  of 
Lading. 

There  appears,  at  least  in  my  opinion,  to  be  no  alternative  but 
to  reconsider  the  whole  subject.  In  order,  therefore,  to  facilitate 
this  course  of  proceeding,  I  would  suggest  that  a  small  committee 
of  five  gentlemen,  viz.  one  shipowner,  one  merchant  (not  holding 
shipping  property),  one  underwriter,  one  banker,  and  one  lawyer 
should  be  elected  by  this  conference  for  the  purpose  of  considering 
the  matter  and  reporting  their  recommendations  at  their  earliest 
convenience. 

The  conference  will  then  be  able  to  base  their  further  i-esolu- 
tions  upon  what  may  be  justly  called  equitable  recommendations. 

I  should  further  mention  that  very  serious  objections  have  been 
raised  to  the  present  forms  of  the  bills  of  lading  in  general.  It 
has  been  observed  that  it  is  not  only  inconvenient,  but  utterly 
impossible  for  any  individual,  whether  he  be  the  shipper  of  the 
goods  or  his  underwriter,  or  the  banker  with  whom  he  wants  to 
negotiate  a  loan  on  depositing  the  bill  of  lading  as  security,  to 
read  and  examine  its  contents.  It  has  been  suggested  that  the 
bill  of  lading  in  its  original  short  form  should  be  restored,  and 
should  contain  simply  a  reference  to  a  code  of  Rules  of  Affreight- 
ment in  precisely  the  same  way  as  is  done  in  policies  of  insurance 
to  the  York  and  Anlwi'i-p  Ca'ueral  Average  llules.  It  would  be 
the  duty  of  your  committee  to  draw  up  such  a  code,  which  might 
be  styled  '  International  Affreightment  and  Bills  of  Lading  Rules.' 

By  adojjting  this  course  the  same  object  would  be  attained  as 
the  ])arties  interested  now  have  in  contemplation,  namely,  the 
iiiiirdriiiitv  of  lli(^  conditions  under  which  bills  of  lading  are  to  bo 
issui'd  1)V  the  shipowner,  received  by  the  owner  of  the  goods,  and 


INTERNATIONAL    LAW    OF   AFFREIGHTMENT.  4:35 

dealt  with  by  him  in  his  transactions  with  liis  underwriter  and 
with  his  banker ;  while  there  would  be  the  additional  advantage 
that  it  would  be  easy  to  detect  and  correct  in  such  a  short 
document  any  misprint,  which  in  any  document  of  the  length  of 
the  Liverpool  Bill  of  Lading,  would  be  practically  impossible. 

With  regard  to  the  proposition  contained  in  the  report,  that  a 
small  committee  should  be  appointed  to  consider  and  report  on  the 
subject,  I  stated  that,  having  had  the  opportunity,  since  my  arrival 
at  Hamburg,  of  conferring  with  several  members  and  delegates, 
and  finding  that  nearly  all  those  present  at  the  conference  were 
specially  interested  in  this  question,  I  desired  to  withdraw  the 
proposal,  and  to  suggest  instead  that  tlio  conference  itself  proceed 
at  once  with  the  discussion  of  the  subject. 

The  President  observed  that  a  modification  of  the  Liverpool 
Bill  of  Lading  had  been  prepared  by  Dr.  Stubbs,  as  secretary  of 
the  committee,  with  a  view  of  its  forming  a  basis  for  the  dis- 
cussions of  the  conference.  But  as  this  form  was  not  yet  in  print, 
and  could  not  be  distributed  to  the  members  of  the  Association 
until  to-morrow  morning,  he  proposed  that  for  the  present,  in 
order  to  avoid  any  loss  of  time,  the  Rules  of  Affreightment  pre- 
pared b}^  the  Hamburg  Chamber  of  Commerce,  which  had  already 
been  printed  for  distribution  amongst  the  members  of  the  con- 
ference, should  be  taken  as  the  basis  of  discussion.  This  proposal 
was  adopted  by  the  conference.  The  following  are  the  rules 
prepared  by  the  Hamburg  Chamber  of  Commerce  : — 

Rules  proposed  by  the  Hamburg  Chamber  of  Commerce 

CONCEHXING    BiLLS    OF    LADING. 

Rule  L — It  shall  not  be  lawful  to  insert  in  the  bill  of  ladintr 
any  clause,  covenant,  or  agreement,  whereby  the  obligations  of 
owners  to  properly  equip,  man,  provision,  and  outfit  the  vessel, 
and  to  render  her  seaworthy  and  capable  of  performing  her  in- 
tended voyage,  or  whereby  the  liability  of  owners  for  the  faults  or 
negligence  of  their  servants  in  all  matters  relating  to  the  ordinary 
course  of  the  voyage,  such  as  the  stowa;^e  and  right  delivery  of  the 
cargo  and  other  matters  of  this  kind,  shall  in  any  wise  l)e  lessened. 


436  MARITIME   LEGISLATION. 

weakened  or  avoided ;  and  all  provisions  and  clauses  to  the  con- 
trar\-  shall  be  null  and  void  and  of  no  effect  in  law, 

EuLE  2. — Owners  to  be  exempt  from  the  perils  of  the  seas,  fire, 
enemies,  pirates,  assailing  thieves,  barratry  (but  not  common  theft), 
arrest  and  restraint  of  princes,  rulers,  and  peoples;  and  not 
answerable  for  losses  by  collisions,  stranding,  and  all  other  accidents 
of  navigation,  even  though  the  loss  from  these  may  be  attributable 
to  some  wrongful  act,  fault,  neglect,  or  error  in  judgment  of  the 
pilot,  master,  mariners,  or  other  servants  of  the  shipowner,  nor  for 
losses  through  explosion,  bursting  of  boilers,  breakage  of  shafts,  or 
any  latent  defect  in  hull  or  machinery  (not  resulting  in  either  case 
from  unseaworthiness  nor  from  want  of  due  diligence  by  the  owner 
of  the  ship  or  by  the  ship's  husband  or  manager)  ;  nor  for  decay, 
putrefaction,  rust,  sweat,  change  of  character,  drainage,  leakage, 
breakage,  land  damage,  or  any  other  damage  arising  from  the 
nature  of  the  goods  shipped  or  the  insufficiency  of  package  ;  nor 
for  the  obliteration  of  marks,  numbers,  addresses,  or  descriptions 
of  goods  shipped ;  nor  for  any  damage  or  loss  caused  by  the  pro- 
longation of  the  voyage. 

Rule  3. — Ship  to  be  at  liberty  to  call  at  any  intermediate 
ports,  to  sail  without  pilots,  to  tow  and  assist  vessels  in  distress, 
and  to  deviate  for  the  purpose  of  saving  life  or  property  ;  also  with 
liberty,  in  case  the  ship  shall  put  into  a  port  of  refuge  for  repairs, 
to  tranship  the  goods  to  their  destination  by  any  other  steamship  ; 
and  with  liberty  to  convey  goods  in  lighters  to  and  from  the  ship 
at  shipper's  risk,  but  at  ship's  expense. 

I^^ULE  4. — Quality-marks,  if  any,  to  be  of  the  same  size  as  and 
contiguous  to  the  leading  marks ;  and  if  inserted  in  the  shijiping 
not^s  accepted  by  the  mate,  the  master  is  bound  to  sign  bills  of 
lading  conformable  thereto. 

llULE  5. — Ship  not  accountable  for  gold,  silver,  bullion,  specie, 
docum'ents,  jewellery,  works  of  art,  or  other  valuables,  unless  bills 
of  lading  are  signed  therefor  with  the  value  therein  expressed  and 
a  special  agreement  is  made. 

llULE  G. — Shippers  accountable  for  any  loss  or  damage  to  ship 
or  cargo  caused  by  inflaimii:il)l.-,  explosive,  or  dangerous  goods, 
sliiprxd    wilhoiil     full    disclosure    of   Ihfii'    nature,   whether    such 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  437 

sliipper  shall  have  been  aware  of  it  or  not,  and  whether  such 
shipper  be  principal  or  agent ;  such  goods  may  be  thrown  over- 
board or  destroyed  by  the  master  or  owner  of  the  ship  at  any  time 
without  compensation. 

Rule  7. — AH  fines  or  damages  which  the  ship  or  cargo  may 
incur  or  suffer  by  reason  of  incorrect  or  insufficient  marking  of 
packages  or  description  of  their  contents,  shall  be  paid  by  the 
shipper  or  consignee,  and  the  ship  shall  have  a  lien  on  the  goods 
of  such  sliipper  or  consignee  for  the  amount  thereof 

Rule  8. — Goods  delivered  to  the  ship,  whilst  on  quay  await- 
ing shipment,  to  be  at  shipper's  risk,  as  regards  all  the  j^erila 
excepted  in  these  rules,  except  in  cases  where  such  goods  are 
detained  awaiting  shipment  for  the  convenience  of  the  shipowner. 

Rule  9. — Goods  once  shipped  cannot  be  taken  away  by  the 
shipper  except  upon  payment  of  full  freight  and  compensation  for 
any  damages  sustained  by  the  owners  through  such  taking 
away. 

Rule  10. — In  case  the  ship  shall  be  prevented  from  reaching 
her  destination  by  quarantine,  blockade,  ice,  or  the  hostile  act  of 
any  power,  the  master  or  owners  may  discharge  the  goods  into  any 
depot  or  lazaretto,  or  at  the  nearest  convenient  port ;  all  expenses 
thereby  incurred  upon  the  goods  to  be  borne  by  the  owners  or 
receivers  thereof. 

Rule  11. — Full  freight  is  due  on  damaged  goods. 

Rule  12. — If  the  goods  be  not  taken  by  the  consignee  imme- 
diately on  landing,  or  within  such  further  time  as  is  provided  by 
the  regulations  of  the  port  of  discharge,  they  may  be  stored  or 
discharged  into  hulks  or  lighters  by  the  master  at  the  expense  and 
risk  of  their  owners ;  provided  always,  that  public  notice  is  given 
of  the  arrival  of  the  ship  and  the  commencement  of  the  discharge, 
and  that  the  same  does  not  begin  at  night,  or  at  any  unreasonable 
hour. 

Rule  13. — Ship  to  have  a  lien  on  all  goods  for  payment  of 
freight  and  charges,  including  back  freight,  demurrage,  forwarding 
charges,  and  charges  for  carriage  to  port  of  shipment,  and  to  be 
entitled  to  recover  from  the  shipper  the  difference  between  the 
amount  of  freight  stipuIatLxl  in  the  bill  uf  lading  and  the  proccoils 


438  .MARITIME   LEGISLATION. 

of  the  goods,  should  the  consignee  neglect  or  refuse  to  receive 
them. 

Elle  14. — To  the  extent  of  the  value  of  the  lien,  freight, 
which  by  the  terms  of  the  bill  of  lading  is  made  pa^'able  by  the 
consio-nee,  cannot  be  demanded  from  the  shipper  after  the  master 
has  parted  with  his  lien  on  the  goods. 

Rule  15. — In  the  event  of  claims  for  short  delivery  when  the 
ship  reaches  her  destination,  the  price  to  be  the  market  price  at 
the  port  of  destination  on  the  day  of  the  ship's  entry  at  the  custom- 
house, less  all  charges  saved. 

Rule  16. — Weight,  measure,  quality,  contents,  and  value, 
although  mentioned  in  the  bill  of  lading,  to  be  considered  as 
unknown  to  the  master,  unless  expressly  recognised  and  agreed  to 
the  contrary. 

Rule  17. — General  Average  to  be  paid  according  to  York- 
Antwerp  Rules. 

Rule  18. — Freight  to  be  paid  on  delivery  in  cash,  without 
discount,  at  the  rate  of  exchange  of  bankers'  bills  at  sight  current 
on  the  day  of  the  ship's  entry  at  the  custom-house. 

Herr  Jacob  Ahlers,  one  of  the  delegates  of  the  Hamburg 
Chamber  of  Commerce,  explained  the  grounds  upon  which  that 
body  had  proceeded  in  framing  the  rules  now  before  the  confer- 
ence. The  Chamber  would  on  no  account  relieve  the  shipowner 
from  responsibility  for  seaworthiness,  the  equipment  of  the  ship, 
stowage  of  the  cargo,  and  so  forth,  but  they  considered  it  unjust 
to  hold  him  responsible  for  the  ability  and  skill  of  the  crew.  No 
tradesman  dealing  on  a  large  scale  would  undertake  such  responsi- 
bility for  his  staff.  The  shipowner  would  certainly  do  his  utmost 
to  make  a  good  selection  as  regards  the  captain  and  the  crew  ;  he 
would  have  to  see  that,  even  in  foreign  ports,  the  equipment  and 
stowage  are  well  done,  but,  on  the  other  hand,  it  would  be  abso- 
lutely impossible,  in  view  of  the  present  rapidity  of  communication, 
for  him  to  make  a  selection  with  regard  to  the  crew.  He  would 
cite,  as  an  illnsfration,  carriage  by  post  and  railway,  in  which, 
altliough  certainly  responsibility  was  undertaken,  it  was  only  on 
])aym(',nt  of  a  high  pi-emium  ;  and  under  such  conditions  possibly 
'<liij)o\vn('i'K  also  might  be  induced  to  undertake  the  liability.     The 


INTERNATIONAL    LAW   OF   AFFREIGIITMI.NT.  4:)d 

rules  of  the  Hamburg  Chamber  would  make  them  res])o]isible  for 
everythiuo-  tluit  could  injustice  be  required  of  him,  but  not  for  the 
acts  of  men  over  whose  action  it  was  absolutely  impossible  for  an 
owner  to  exercise  control.  When  even  the  Post  Office  and  the 
railway,  notwithstanding  their  numerous  staff,  are  unable  to  super- 
vise every  action,  how  could  the  shipowner  be  in  a  position  to 
assume  the  responsibility  ?  He  concluded  by  recommending  the 
rules  to  the  consideration  of  the  conference. 

The  general  secretary  then  read  the  following  extract  from  a 
letter  received  from  Mr.  llichard  Lowndes,  of  Liverpool,  who  was 
prevented  by  ill-health  from  taking  part  in  the  conference.  The 
letter  was  dated  August  7,  1885  : — 

'  With  regard  to  the  reform  of  the  law  and  practice  of  this 
country  as  to  the  bill  of  lading,  I  can  state  with  confidence  that 
there  is  already  a  great  change  in  the  feeling  of  the  steamship- 
owning  companies  of  Liverpool  since  the  time  when  your  Asso- 
ciation met  in  Liverpool.  At  that  time  their  opposition  to  our 
proposals — or  at  least  the  opposition  of  a  large  party  amongst 
them — was  the  great  difficulty  in  our  way.  Now,  I  believe — 
very  likely  to  a  great  extent  from  the  fear  of  a  still  stronger 
measure  threatened  by  Mr.  Chamberlain — many  of  those  steam- 
ship owners  who  were  then  most  hostile  have  come  round  to  see 
that  we  were  really  their  best  friends,  and  will  now  support  us. 
The  Committee  of  Lloyd's  also  are  taking  action  in  what  is  likely 
to  prove  the  same  direction. 

'  There  is,  however,  a  certain  pause  or  suspense,  and  we  hardly 
know  how  to  take  action  until  the  Royal  Commission  on  Shipping 
has  issued  its  report,  and  Mr.  Chamberlain  has  brought  out  his 
promised  or  threatened  Bill.  It  would  be  truly  wise,  in  my  opinion, 
to  utilise  the  respite  thus  offered  to  the  shipowners,  by  their  volun- 
tarily proposing  a  well-considered  reform  of  the  bill  of  lading. 
We  may  fairly  hope  that  the  discussion  of  the  subject  at  Hamburg 
may  operate  as  a  stimulus  to  this,  perhaps  by  the  appointment  of 
a  fresh  committee.  Our  bill  of  lading  was  certainly  too  long 
and  cumbrous,  but  the  leading  principles  of  it  have,  1  think,  met 
with  general  acceptance.' 

The  following  resolutions,  adopted  by  the  Chamber  of  Com- 


440  MARITIME   LEGISLATION. 

merce  of  Liibeck,  were  also  presented  to  the  conference  by  the 
deleo-ates  of  that  Chamber,  and  distributed  to  those  present,  but 
were  not  formally  moved,  in  view  of  the  direction  taken  by  the 
discussion : — 

General  Law  of  Affreightment  and  Bills  of  Lading. 

'1.  It  is  not  feasible  to  include  all  or  all  the  more  important 
principles  concerning  the  law  of  Affreightment  within  the  space  of 
the  form  of  a  bill  of  lading,  as  the  number  of  the  provisions  which 
would  be  required  is  too  great,  and  the  length  of  the  bill  of  lading 
must  necessarily  be  limited,  in  order  to  secure  an  easy  survey  of 
its  contents. 

'  2.  The  form  of  bill  of  lading  hitherto  generally  used,  which 
contains  only  the  necessary  particulars  as  to  the  parties,  the 
objects  of  the  contract,  and  the  contract  itself,  together  with  the 
sundry  provisions  necessary  for  the  case  in  question,  suffices  in 
practice,  because  the  principles  which  govern  the  law  of  Affreight- 
ment are  fixed  by  law  or  custom,  and  are  known  to  all  parties 
concerned  so  far  as  it  is  necessary. 

'  3.  The  wish  to  abolish  the  differences  which  now  exist  in  the 
law  of  Affreightment  of  the  different  maritime  countries  can  only 
be  realised,  in  case  the  legislative  powers  or  the  Governments  of 
the  maritime  countries  authorise  competent  delegates  familiar  with 
maritime  interests,  and  particularly  owners,  merchants,  under- 
writers, and  jurists,  to  deliberate  and  agree  on  the  draft  of  a  code 
of  maritime  law. 

'  4.  Besides  such  international  code  of  maritime  law,  it  will 
always  be  necessary  to  provide  clauses  for  particular  species  of 
shipping  as  to  the  mutual  rights  and  duties  of  the  parties  con- 
cerned, which  clauses  in  every  case  must  be  stipulated  by  those 
concerned  according  to  cireumstiinces  and  equity.  These  pro- 
visions, wliicli  may  exist  at  tlie  side  of  the  general  law  or  alter 
the  same,  are  to  be  incorporated  in  the  bill  of  lading  or  to  be 
quoted  only,  in  case  their  length  should  make  that  necessary.  A 
cf>imiion  foi'iii  iif  hill  of  lading  suiting  all  purposes  cannot  be 
framed. 

'5.  The  i)re.sent    attempt    lui  the  part  of  shipowners  to  render, 


INTERNATIONAL  LAW   OF  AFFREIGHTMENT.  441 

by  a  common  form  of  bill  of  lading,  the  shipowners  in  future  no 
longer  liable  for  the  faults  of  their  servants  cannot  be  approved  of, 
as  it  would  constitute  an  anomaly  in  maritime  and  commercial  law. 

'  The  liberty  to  call  at  any  ports  in  any  order,  to  sail  without 
pilots,  to  tow  and  assist  vessels  in  distress,  and  to  deviate  for  the 
purpose  of  saving  property,  is  not  to  be  granted  by  general  clauses 
in  a  common  form  of  bill  of  lading.' 

The  conference  then  proceeded  with  the  discussion  of  the 
Hamburg  Rules,  which  were  read,  one  by  one,  by  the  General 
Secretary. 

On  Rule  1,  Dr.  Raiiusex  (Amsterdam)  objected  to  the  limita- 
tion of  the  owners'  liability  to  '  matters  relating  to  the  ordinary 
course  of  the  voyage,'  and  considered  that  the  wording  of  this  part 
of  the  rule  was  by  no  means  clear. 

Hekr  Aiilehs  defended  the  rule,  though  willing  to  have  the 
wording  modified  so  as  to  make  the  meaning  clearer. 

Consul  H.  H.  Meier  preferred,  on  this  point,  the  wording  of 
the  model  bill  of  lading  prepared  by  the  New  York  Produce 
Exchange,  and  approved  by  the  Liverpool  Steamship  Owners' 
Association,  which  he  read.  He  wished  to  defend  the  shipowners 
against  the  attacks  now  directed  against  them.  Their  position  was 
a  very  different  one  from  that  of  the  railways,  which  were  mono- 
polies, but  a  shipowner  could  not  by  any  means  be  said  to  possess 
a  monopoly.  The  effect  of  imposing  liability  upon  shipowners  for 
the  negligence  of  their  officers  and  crew,  whose  conduct  whilst  at 
sea  and  in  foreign  ports  it  was  impossible  for  them  effectively  to 
control,  would  be  to  render  it  impossible  for  them  to  carry  on  their 
business.  It  was  only  of  late  times  that  it  had  been  attempted  to 
make  them  liable  in  such  cases,  and  it  was  not  until  they  had 
been  made  to  suffer  heavily,  for  acts  which  they  were  powerless  to 
prevent,  that  the  great  steamship  companies  had  sought  to  protect 
themselves  by  clauses  in  their  bills  of  lading.  When,  at  the 
Liverpool  conference,  what  he  thought  to  be  unreasonable  claims 
on  the  part  of  the  shipowners  had  been  advanced  and  sanctioned 
by  the  conference,  he  had  protested,  feeling  sure  that  such  one- 
sided decisions  would  not  take  effect  in  practice.  Now  he  desired 
to  ui-ge  upon  the  representatives  of  the  shippers,  in  their  turn,  the 


442  MARITIME   LEGISLATION. 

danger  aud  impolicy  of  going  too  far  in  the  opposite  direction  ;  if 
they  insisted  on  doing  so,  no  mutual  understanding  would  ever  be 
arrived  at. 

Dr.  Yoigt  argued  against  the  right  of  shipowners  to  exempt 
themselves  from  liability  for  losses  due  to  negligence. 

Herr  Ulrich  considered  the  clause  as  to  liability  for  insufficient 
packing,  &c.,  to  be  by  no  means  clear. 

Herr  Ahlers  explained  that  it  was  not  intended  on  this  point 
to  deviate  from  the  common  law. 

After  some  further  discussion,  in  which  Dr.  Stammann, 
Dr.  Monckeberg,  Mr.  Laeisz,  Dr.  Rahusen  and  I  took  part,  the 
conference  unanimously  adopted  the  following  portions  of  the  first 
rule  : — 

'  It  shall  not  be  lawful  to  insert  in  the  bill  of  lading  any  clause, 
covenant,  or  agreement  whereby  the  obligations  of  owners  to 
properly  equip,  man,  provision,  and  outfit  the  vessel,  and  to  render 
her  seaworthy  and  capable  of  performing  her  intended  voyage  .  .  . 
shall  in  any  wise  be  lessened,  weakened,  or  avoided ;  and  all 
provisions  and  clauses  to  the  contrary  shall  be  null  and  void,  and 
of  no  effect  in  law.' 

The  clause  after  '  voyage,'  '  or  whereby  the  liabilities  of  owners 
for  the  faults  or  negligence  of  their  servants  in  ...  .  the  right 
delivery  of  the  cargo,  and  other  matters  of  this  kind,'  was  also 
adopted  by  a  large  majority.  The  words  '  stowage  and,'  before 
'  right  delivery,'  were  then  adoj^ted  by  a  unanimous  vote.  The 
remainder  of  the  rule  (consisting  of  the  words  '  all  matters  relating 
to  the  ordinary  course  of  the  voyage,  such  as '),  giving  rise  to  great 
difference  of  opinion,  was  postponed  for  further  consideration  at 
the  next  sitting.     The  conference  then  adjourned. 


On  Wednesday,  August  10,  the  conference  reassembled  at 
10  A.M.,  the  Tri'sident  (Dr.  Sieveking)  in  the  chair. 

'J'lie  draft  bill  of  lading  prepared  by  Dr.  Stubbs,  as  secretary 
of  the  Bill  of  leading  Connnittec,  was  now  presented,  aud  copies 
di.slriLutud  to  the  members.     It  was  as  follows  : — 


INTERNATIONAL  LAW   OF  AFFREIGHTMENT.  443 

Model  Bill  of  Lading, 

Shipped  on  board  the  ship  whereof  is  master  for  the 

present  voyage  ,  now  lying  in  the  port  of 

and  bound  for  ,  ,  being  marked  and 

numbered  as  per  margin,  to  be  carried   and  delivered  at  the  port 
of  ,  or  so  near  thereto  as  the  ship  and  goods  can   be 

safely  brought,  unto  the  holder  of  this  bill  of  lading,  on  his  paying 
freight  for  the  said  goods  at  the  rate  of 

laydays  for    loading  and  discharging,  demurrage   at    the  rate  of 
per  day. 

Subject  to  all  the  conditions  of  the  International  Code  of 
Affreightment. 

Average  according  to  the  York  and  Antwerp  Rules.  In 
witness  whereof  the  master  of  the  said  ship  has  signed  two  bills  of 
lading  exclusive  of  his  own  copy,  all  of  this  tenor  and  date,  one 
of  which  being  accomplished  the  others  to  stand  void. 

Dated  at  ,  188  . 

(Signed)  Master. 

To  this  was  attaclied  tlic  following  draft : — 

International  Code  of  Affreightment. 


The  shipowner  is  responsible  for  the  safety  and  right  delivery 
of  the  cargo  at  the  port  of  discharge,  unless  the  loss,  damage,  or 
non-delivery  is  directly  caused  by  any  of  the  following  perils : 
reasonable  wear  and  tear  of  packages  or  goods  ;  leakage,  breakage, 
heat,  or  decay ;  the  act  of  God,  the  Queen's  enemies,  pirates  or 
robbers  by  land  or  sea,  the  act,  neglect,  or  default  of  the  master 
or  crew  in  navigating  the  vessel ;  and  accidents  of  the  sea. 

II. 

The  shipowner  is  liable  for  all  loss  caused  to  the  owner  of  the 
cargo  by  any  unreasonable  delay  in  carrying  and  delivering  the 
cargo. 


444  MARITIME   LEGISLATION. 

An  unusual  delay  is  to  be  considered  unreasonable  unless 
caused  by — 

'  The  act  of  God,  the  Queen's  enemies,  or  pirates  or  robbers  by 
sea  or  land  ; 

'  The  act,  neglect,  or  default  of  the  master  or  crew  in  navigating 
the  vessel,  accidents  of  the  sea,  restraint  of  princes,  rulers  or 
peoples ; 

Detention  in  consequence  of  blockade,  quarantine,  or  ice.' 

III. 

Full  freight  is  to  be  paid  upon  all  goods  shipped,  carried  and 
delivered  at  the  named  place  of  delivery,  or  so  near  thereto  as 
the  same  can  be  safely  brought  by  the  shipowner  exercising  all 
reasonable  efforts  and  diligence. 

The  shipowner  shall  be  considered  to  have  fully  exercised 
such  efforts  and  diligence  when  the  ship  has  been  brought  so  near 
the  place  of  delivery  as  she  can  come,  and  be  always  afloat  at  the 
first  flood-time  without  lightening. 

IV. 

Freight  shall  be  paid  upon  deliver}-  of  the  cargo  in  current  coin 
of  the  place  of  delivery,  without  discount,  and  shall  be  calculated 
at  the  Fame  rate  by  which  the  uanicd  freight  in  the  bill  of  lading 
coiikl  be  purchased  at  that  time  and  place. 

Freight  shall  be  payable  upon  the  bill  of  lading  quantities, 
unless  either  party,  shipowner  or  consignee,  before  delivery  intimate 
that  he  requires  the  cargo  to  be  weighed  or  measured  at  the  place 
of  delivery. 

In  such  case  the  owner  or  master  and  the  consignee  shall  join 
in  apj)ointing  one  or  more  meters  or  weighers,  whose  decision  as 
to  the  quantity  delivered  shall,  in  the  absence  of  fraud,  be  final. 
The  charge  for  such  weighing  or  measuring  shall  be  borne  in 
moieties  by  the  shipowner  and  the  consignee. 

No  freight  is  due  on  any  increase  of  bulk  or  weight  caused  by 
the  absor|)tioii  of  water  dnring  the  voyage. 

I'ull  IVeight  is  due  upon  ail   tlaiuaged  goods  delivered,  unless 


INTERNATIONAL  LAW  OF  AFFREIGHTMENT.  445 

tho  damage  is  caused  by  the  negligence  or  default  of  the  shipowner 
or  liis  serv'ants. 

In  case  the  sliip  sliall  be  prevented  from  reaching  her  destina- 
tion l)y  quarantine,  blockade,  ice,  or  hostile  act  of  any  Power,  the 
master  may  discharge  the  goods  into  any  depot  or  lazaretto  at  the 
nearest  av^ailable  port.  All  expenses  incurred  thereby  upon  the 
goods  shall  be  borne  by  the  shipper  and  consignee,  and  full  freight 
shall  thereupon  be  due. 

Pro  rata  freight  is  payable  in  no  case,  except  by  special  agree- 
ment. 

V. 

In  case  the  cargo  is  carried  to  its  destination  and  tlu^  consignee 
refuses  to  accept  delivery,  the  cargo  may  be  landed  In'  \hc  master 
and  warehoused,  and  twenty-four  hours  after  writtt^n  notice  to  sucli 
effect  has  been  given  to  the  shipper  or  consignee,  may  be  sold  by 
the  master  or  owner  of  the  ship.  All  landing,  warehousing,  and 
sale  charges  shall  be  payable  by  the  shipper  and  consignee. 

VI. 

All  charges  incurred  in  shipping  cargo,  before  the  cargo  is 
placed  on  board  or  taken  to  by  the  ship's  tackle,  and  in  landing 
cargo  after  it  has  left  the  ship's  side  and  tackle,  sliall  be  borne  by 
the  shipper  and  consignee  of  the  cargo. 

VIT. 

In  the  event  of  claims  for  short  delivery,  the  damages  payable 
by  the  shipowner  shall  be  the  market  price  of  similar  goods  at  the 
port  of  destination  on  the  day  of  the  ship's  reporting  at  the  custom- 
house, less  all  charges  saved,  if  the  ship  reaches  her  destination ; 
and  if  the  ship  does  not  reach  her  destination,  then  the  market 
price  of  the  goods  at  the  port  of  shipment,  plus  ten  per  cent,  to 
cover  prospective  profits,  and  interest  calculated  at  five  per  cent. 
per  annum  on  this  gross  amount  from  the  day  of  shipment  until 
payment,  less  the  average  length  of  the  voyage. 

VIII. 

The  shipowner  shall  be  liable  for  all  dues  upon  the  ship,  and 
the  shipper  and  consignee  for  all  dues  upon  the  cargo. 


446  MARITIME   LEGISLATION. 

The  shipper  and  consignee  shall  be  liable  to  pay  or  make  good 
to  the  shipowner  all  fines  and  damages  incurred  or  paid  Ijy  the 
shipowner,  by  reason  of  incorrect  or  insufficient  marking,  or  de- 
scription of  the  cargo,  or  otherwise  by  neglect  or  default  of  shipper, 
consignee,  or  owner  of  the  cargo. 

IX. 

Laydays  at  the  port  of  loading  shall  commence  on  the  day  the 
ship  is  reported  inwards  at  the  custom-house,  if  before  midday, 
or  the  loading  commence  on  that  day,  and  on  the  following  day,  if 
after  midday,  and  the  loading  do  not  commence  on  that  day. 

Laydays  or  demurrage  days  at  the  place  of  discharge  shall 
commence  on  the  day  the  ship  is  reported  inwards  at  the  custom- 
house, if  before  midday,  or  the  unloading  commence  on  that  day, 
and  on  the  following  day,  if  after  midday,  and  the  unloading  do 
not  commence  on  that  day. 

Laydays  or  days  on  demurrage  shall  continue  to  count,  up  to 
and  including  the  days  on  which  the  loading  and  discharging  of 
the  cargo  is  finally  concluded. 

The  days  both  for  laydays  and  for  demurrage  days  shall  be  con- 
secutive days,  without  any  allowance  for  non-working  days,  unless 
the  working  has  been  discontinued  solely  by  the  default  of  the 
master  or  crew  of  the  ship. 

A  day  for  the  purpose  of  calculating  laydays  or  days  on  de- 
murrage shall  count  from  midnight  to  midnight,  and  the  first  and 
last  days  if  part  or  broken  da3-s  shall  count  as  whole  days. 

X. 

The  shipowner  shall  have  a  lien  upon  the  cargo  and  the  pro- 
ceeds thereof,  if  justifiably  sold  by  him  or  his  agents,  for  all  freight, 
demurrage,  and  other  charges  and  damages  herein  made  paj'able 
by  the  shipper  and  consignee  of  the  cargo. 

XL 

In  the  course  of  the  voyage,  the  sliip  is  to  be  at  liberty  to  call 
at  any  intermediate,  Ituf  not  other  jiorts,  to  sail  without  pilots,  to 
tow  and  assist  vessels  in  distress,  and  to  deviate  for  the  purpose  of 
saving  life  or  property. 


INTERNATIONAL   LAW  OF  AFFREIGHTMENT.  447 

XII. 

In  case  the  ship  shall  put  into  a  port  of  refuge  for  repairs,  the 
master  shall  be  at  liberty,  at  ship's  expense,  to  tranship  the  goods 
to  their  destination,  and  thereby  earn  full  freight. 

Copies  of  the  New  York  Produce  Exchange  Bill  of  Lading  ' 
were  also  distributed. 

The  President  stated  that  the  discussion  would  now  proceed 
upon  the  basis  of  this  form,  the  decisions  arrived  at  yesterday  being 
incorporated  in  it. 

The  form  of  bill  of  lading  having  been  adopted  without  com- 
ment, subject  to  revision,  Rule  1  of  the  draft  '  International  Code 
of  Affreightment '  was  read. 

Kesponsibiltty  for  Negligence. 

I  proposed  that  the  words  '  the  act,  neglect,  or  default,'  in  the 
phrase  '  act,  neglect,  or  default  of  the  master  or  crew  in  navigating 
the  vessel,'  be  omitted,  and  replaced  by  the  words  '  error  of 
judgment.'  Although  I  did  not  think  it  necessary  to  give  all 
my  reasons  for  doing  so,  I  might  state  that  the  experience  I  had 
trained  by  my  investigations  into  maritime  casualties  for  many 
years  past,  enabled  me  to  assure  the  conference  that  at  least 
nine-tenths  of  all  such  disasters  as  strandings,  collisions  at  sea, 
and  so  forth,  were  due  to  some  neglect  or  other  of  the  crew  which 
might  be  prevented  if  due  diligence  were  exercised.  I  therefore 
thought  that  for  such  '  neglect  or  default '  the  shipowner  ought  to 
be  made  answerable,  but  not  for  mere  '  error  of  judgment.' 

Herk  Ulrich  seconded  this  amendment. 

Dr.  Franck  was  of  opinion  that  the  words  in  the  draft  rule, 
and  those  suggested  to  be  substituted,  should  be  alike  omitted. 

Herr  Ahlers  contended  that  it  would  be  extremely  difficult 
for  the  Courts,  in  inquiring  into  the  causes  of  an  accident,  to 
istinguish  where  '  error  of  judgment '  ended,  and  '  neglect  or 
default '  began.  In  cases  of  emergency  the  captain  and  steersman 
needed  to  summon  all  their  energies ;  yet,  even  under  such  circum- 

•  See  p.  395. 


448  MARITIME   LEGISLATION. 

stances,  they  must  depend  entirely  upon  tlie  reliability  of  tlie  crew. 
He  was  of  opinion  that  a  decision  in  the  sense  of  the  amtnidnient 
would  be  absolutely  impossible  to  carry  out,  as  shipowners  would 
never  accept  it.  If  the  conference  wished  to  achieve  a  durable 
work,  it  should  accept  the  clause  as  presented. 

M.  Theodore  Exgels  also  opposed  the  amendment,  and  con- 
sidered it  to  be  in  the  highest  degree  unreasonable.  Being  to  a 
great  extent  his  own  insurer,  he  had  the  very  strongest  interest  in 
getting  the  best  captains  and  crew  for  his  vessels,  and  in  managing 
them  so  as  to  avoid  all  losses,  but  the  responsibility  proposed  to  be 
cast  on  shipowners  by  the  amendment  was  one  which  he  held  to 
be  unendurable. 

I  explained  that  I  had  expressly  proposed  to  exempt  the 
owner  from  liability  for  'errors  of  judgment,'  and  I  considered 
the  difference  between  it  and  '  neglect  or  default '  to  be  very  clear. 

Herr  Suckau  wished  both  expressions  to  be  omitted. 

Dr.  Rahusex  considered  that  it  would  be  by  no  means  favour- 
able to  the  shipping  interest,  in  those  cases  in  which  it  came  into 
competition  with  railways,  to  drive  to  such  an  extent  the  exemption 
of  shipowners  from  liability  for  the  negligence  of  their  servants. 
He  also  regi'etted  their  exemption  from  liability  for  default  in  the 
unloading  of  the  vessel.  He  inquired  whether  the  principles  now 
to  be  laid  down  were  to  be  considered  solely  as  clauses  suggested 
for  a  model  bill  of  lading  which  might  be  accepted  or  rejected,  or 
whether  it  would  be  understood  that  they  were  to  be  obligatory. 

TiiK  President  n-plit'd  that  it  must  be  considered  that  the 
rules  on  this  question  of  liability  for  negligence  would  be  obligatory. 
The  question  as  to  liability  for  damages  in  unloading  could  be 
taken  up  later. 

Dj{.  \'oI(JT  was  of  opinion  that  the  most  serious  cause  of  liability 
on  the  part  of  shipowners,  collision,  ought  to  be  provided  for  by  law, 
and  that  they  should  not  be  allowed  arbitrarily  to  exclude  it  by 
])rivate  conventions.  Besides,  in  most  cases,  the  shipowner  was 
only  r('sponsil)le  to  the  value  of  liis  ship  and  freight.  The  con- 
scicjiisness  of  irresponsibility  would  certainly  lead  to  much  greater 
iK-gligfmce.  The  shipowner  would  be  able  to  cover  his  risk  by  an 
increased  freight. 


INTERNATIONAL   LAW   OF   AFFREIGIITiMI':NT.  449 

Consul  H.  H.  Meier  drew  attention  to  the  significance  of  the 
object  sought  to  be  attained — that  of  limiting  the  right  of  free 
contract  between  the  shipowner  and  the  shipper.  It  would  in 
practice  be  impossible  for  the  owner  to  undertake  responsibility 
for  his  crew.  The  North  German  Lloyd,  for  example,  of  which 
he  was  chairman,  employed  3,000  men,  and  how  was  it  possible  to 
undertake  such  a  responsibility  as  would  be  cast  upon  them  by 
this  amendment  ?  From  a  legal  point  of  view  it  might  sound  very 
well,  but  practically  it  was  unjust.  Although  he  was  speaking 
quasi  "pro  domo,  he  must  at  the  same  time  observe  that  his  com- 
pany were  their  own  insurers  and  bore  the  entire  risk  themselves, 
so  that  they  had  the  greatest  interest  in  making  the  most  careful 
selection  of  their  crews.  How  could  the  shipowner  in  Europe  bs 
responsible  for  the  Lascars,  for  instance,  who  were  taken  on 
board  in  the  Indian  archipelago  as  pilots  because  of  their  ac- 
quaintance with  its  intricate  navigation  ?  It  was  practically 
impossible  to  discharge  such  a  responsibility ;  at  the  best  it  would 
be  an  embodiment  of  the  maxim,  Fiat  justitia  pereat  mundus. 
It  must  be  permitted  to  shipowners  to  exclude,  by  private  con- 
vention, such  an  obligation. 

Herr  Steinacker  stated  that,  as  the  delegate  of  the  Chamber 
of  Commerce  of  Buda-Pesth,  he  looked  at  the  question  essentially 
from  the  point  of  view  of  the  shippers'  interests.  In  Hungary 
the  shipowning  class  was  insignificant,  so  that  their  commerce 
depended  almost  entirely  on  the  shipowners  of  other  countries. 
The  shippers  in  his  country  were  unanimous  in  calling  for  an 
increase  of  the  shipowners'  liability.  He  desired,  in  fulfilment  of 
his  commission,  to  impress  upon  the  conference  the  importance  of 
not  allowing  the  shipowners  to  go  too  far  in  limiting  their  liability 
towards  the  shippers.  Hungary  did  not  yet  possess  a  commercial 
code,  and  the  rules  adopted  by  the  Association  would  therefore  be 
of  great  importance  to  them. 

Herr  Ahlers  opposed  the  views  both  of  Herr  Suckau  and  of 
Consul  Annecke.  He  considered  the  amendment  before  the 
meeting  to  be  entirely  unworkable  and  impracticable.  If  it  were 
adopted  it  would  be  impossible  to  arrive  at  any  of  the  amendments  in 
the  law  which  were  most  urgently  required  by  all  seafaring  nations. 

(i  G 


4.J0  ]\rARITIME  LEGISLATION. 

Here  Woermaxn  entirely  agreed  with  Consul  Meier.  If  the 
amendment  were  adopted,  shipowners  would  have  to  cover  them- 
selves by  insurance  for  the  whole  value  of  the  cargo,  which  was 
frequently  many  times  more  than  that  of  the  ship.  This  would 
impose  upon  them  an  inordinate  burden.  The  shippers  could 
insure  the  goods  much  better  than  the  shipowners.  Besides,  not 
even  the  liability  of  the  shipowners  by  English  law  would  ade- 
quatelv  protect  the  shippers'  interests.  The  shipowner  could  only 
undertake  responsibility  for  his  crew  to  the  extent  agreed  to  by 
the  conference  yesterday  ;  anything  more  would  be  impracticable 
and  unjust. 

Consul  Preuss,  on  behalf  of  the  Konigsberg  Chamber  of  Com- 
merce, of  which  he  was  president,  agreed  w^ith  Consul  Meier,  that 
it  would  be  impracticable  for  the  shipowner  to  protect  himself  by 
insurance.  He  hoped  the  first  rule  would  be  adopted  without 
alteration. 

Judge  Peabody  expressed  his  regret  at  not  having  been  able  to 
follow  the  discussion  that  had  taken  place  in  German,  and  desired 
to  be  excused  if  on  that  account  he  should  unconsciously  repeat 
aro-uments  that  had  already  been  urged.  He  wished  to  point  out 
that,  in  the  case  of  carriage  by  sea,  the  shipper  was  often  in  a  con- 
dition to  know  very  little  of  the  qualifications  of  the  carrier,  the 
shipowner.  Although  he  might  be  acquainted,  by  reputation  or 
otherwise,  with  a  few  great  corporations  or  firms  engaged  in  busi- 
ness as  carriers,  yet  in  many  cases  great  lines  of  shipowners,  with 
whom  he  could  have  no  practical  acquaintance,  would  have  a  prac- 
ncal  monopoly  of  the  business,  and  he  would  have  no  alternative 
Init  to  trust  his  property  to  them,  and  the  property  once  in  posses- 
sion of  the  carrier  was  not  only  out  of  his  control,  but  beyond  his 
knowledge,  and  where,  with  his  limited  means  of  acquiring  know- 
ledge, it  would  be  out  of  his  jjower  to  learn  what  was  done  or 
left  undone  in  respect  to  it;  and  this  was  the  reason  why  the 
carrier  had  been  usually  held  to  very  strict  responsibility  in  respect 
of  property  entrusted  to  him.  This  rule,  under  the  circumstances, 
would  not  seem  to  b(^  unjust,  or  hostile  to  the  best  interests  of 
society.  'J'lur  power  is  with  the  currier,  and  on  him  should  rest 
the  resiioiisiliility.     (Jreat  care  should  be  taken  in  adopting  mca- 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  451 

sures  which  would  tend  to  exempt  the  shipowner  from  resjoonsibility, 
or  greatly  to  diminish  the  responsibility  to  which  he  had  hitherto 
usually  been  held.  The  goods  might  often  be  hundreds  and  even 
thousands  of  miles  from  the  consignor,  and  in  course  of  transitus^ 
in  places  of  which  he  had  no  knowledge,  and  in  the  care  and  con- 
trol of  the  servants  of  the  carrier,  over  whose  selection  he  could 

t 
exercise  no  influence,  and  of  whose  trustworthiness  he  could  know 

nothing,  but  whose  employment  was  by  the  shipowner,  and  whose 
trustworthiness  should  be  known  to  him.  It  was  therefore  to 
the  highest  degree  in  the  interests  of  society  at  large  that  those 
general  principles  of  law  should  be  applied,  by  which  carriers  are 
responsible  for  the  due  delivery  of  goods  committed  to  their  charge, 
and  the  responsibility  would  be  only  commensurate  with  the  ob- 
ligation. The  question  where  to  fix  the  precise  line  at  which  this 
responsibility  should  end  was  a  difficult  one  ;  but  in  fixing  the  line 
it  should  be  borne  in  mind  that  the  carrier  and  his  agents  are  on 
the  spot,  and  that  it  is  their  duty  and  business  to  select  the  men 
who  are  to  navigate  the  vessel  and  take  charge  of  the  property. 
The  presumption  of  law  should  therefore  be  in  favour  of  protecting 
the  helpless  against  the  powerful,  those  who  are  not  in  a  position 
to  look  after  their  own  interests  against  those  who  are,  and  we 
should  be  very  slow  to  limit  the  carriers'  liabilities.  It  is  a  uni- 
versal principle  of  law,  and  is  the  law  of  nature,  that  every  man  is 
responsible  for  his  own  acts,  and  that  every  man  who  acts  by 
another  in  effect  acts  by  himself,  is  bound  for  the  acts  of  the 
persons  he  employs — bound  for  their  diligence,  their  honesty,  and 
their  capability.  The  carrier  ought  to  be  responsible,  with  very 
few  exceptions,  for  that  which  he  undertakes  to  do  for  the  shipper, 
and  this  general  rule  was  a  very  necessary  one  for  the  general  in- 
terests of  commerce.  He  hoped  the  conference  would  not  thought- 
lessly or  lightly  do  anything  to  relax  that  responsibility. 

In  reply  to  the  criticisms  of  my  amendment,  I  said  that  it  was 
not  with  regard  to  great  companies,  like  the  North  German  Lloyd 
and  the  Cunard,  that  such  a  provision  was  necessary :  it  was  with 
regard  to  the  innumerable  smaller  shipowners,  owning  only  two  or 
three  steamers  apiece.  The  carelessness  with  which  these  steamers 
were  sometimes  managed,  especially  in  the  selection  of  ofticers  and 


452  MAEITIME   LEGISLATION. 

crew,  was  simply  indescribable,  as  I  could  testify  from  tlie  ex- 
perience of  many  years  during  which  it  had  been  my  duty  to 
investigate  the  causes  of  accidents.  In  England  this  was  en- 
courao-ed  by  the  state  of  the  law,  by  which  vessels  could  be  insured 
for  far  more  than  their  real  value,  and  of  this  I  gave  an  illustra- 
tion which  had  lately  occurred  in  my  own  practice.  I  proposed 
that  the  vote  should  be  taken  on  the  general  principle  in  question, 
leavino-  the  precise  wording  of  the  rules  to  be  dealt  with  by  a 
committee  to  be  subsequently  appointed. 

Consul  Meier  entreated  the  assembly  not  to  pronounce  a  one- 
sided judgment  on  the  question :  such  a  decision  could  not  possibly 
lead  to  any  result.  He  advocated  the  adoption  of  Eule  I.  of  the 
Hamburg  Chamber  of  Commerce. 

Herk  Laeisz  also  preferred  the  proposition  contained  in  Rule  I. 
of  the  Hamburg  Chamber  of  Commerce.  He  pointed  out  that  the 
shipowner's  exemption  from  liability  for  unseaworthiness,  in  cases 
of  latent  defect,  where  he  had  done  all  that  was  reasonably  possible 
to  secure  seaworthiness,  was  omitted  from  Rule  I.  of  the  form  now 
under  discussion. 

The  President  said  that  the  general  principle  was  now  under 
discussion :  any  question  as  to  the  form  of  the  rules  could  be  dis- 
cussed afterwards. 

M.  Le  Jeune  supported  my  amendment.  He  pointed  out  that 
there  had  long  been  a  limitation  of  the  liability  of  carriers  by  sea 
as  compared  with  can-iers  by  land,  it  having  been  recognised  by 
the  legislation  of  all  countries  that  the  former  could  not  be  held 
responsible  to  the  same  extent  as  the  latter,  on  account  of  the 
greater  difficulty  they  had  in  controlling  the  actions  of  their 
servants.  But  it  was  necessary  to  distinguish  between  the  dif- 
ferent degrees  of  negligence  on  the  part  of  the  crew,  between  the 
culpa  lata  and  the  cuIjm  levis.  For  the  former  the  shipowner 
ought  to  be  answerable,  but  it  was  reasonable  that  he  should  be 
allowed  to  contract  himself  out  of  liability  for  the  latter.  He 
accepted  the  amendtucnt  as  a  reasonable  expression  of  this  dif- 
ference, and  he  thought  it  would  bo  uni'easonable  to  go  further  in 
making  the  shipowner  liable.  He  stated  that  the  most  recent 
decisions  of  llic  Tribunal   dc  Coniincrco  at  Antwerp  had  refused  to 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  453 

recognise  the  validity  of  clauses  in  bills  of  lading  by  which  ship- 
ownei-s  had  sought  to  protect  themselves  from  responsibility  for 
the  negligence  of  their  servants,  on  the  ground  that  such  an 
exemption  was  contrary  to  public  policy. 

Dr.  Franck  considered  that,  from  a  legal  point  of  view,  '  error 
of  judgment'  was  included  in  'default,'  and  he  held  it  to  be 
illogical  to  attempt  to  separate  the  two.  He  repeated  his  opinion 
that  the  words  '  act,  neglect,  or  default,'  should  be  altogether 
struck  out. 

The  President  announced  that  he  proposed  in  the  firet  instance 
to  put  the  question,  '  Ought  the  shipowner  to  be  allowed  to  pro- 
tect himself,  by  a  clause  in  the  bill  of  lading,  from  liability  for 
negligence  on  the  part  of  the  captain,  officers,  and  crew?'  and, 
secondly,  if  this  should  be  carried  in  the  negative,  '  Ought  he  to 
be  allowed  to  protect  himself  against  errors  of  judgment  on  their 
part  ?  '  He  at  the  same  time  repeated  that  the  vote  was  only 
taken  on  the  principle,  salva  redactione.  The  vote  on  the  first 
question  showed  a  majority  of  24  votes  to  17  in  favour  of  the 
proposition  that  the  shipowner  be  not  allowed  to  protect  himself 
against  negligence.  The  second  question,  whether  the  shipowner 
should  be  allowed  to  protect  himself  against  errors  of  judgment, 
having  then  been  put,  was  decided  in  the  affirmative  by  a  majority 
of  23  to  7. 

Rule  1  of  the  committee's  draft  Code  of  Affreightment  was  then 
passed,  the  words  '  error  of  judgment '  having  been  substituted  for 

*  act,  neglect,  or  default,'  and  the  words  '  the  Queen's,'  having  been 
struck  out  before  '  enemies.' 

On  Rule  2,  Herr  Aiilers  thought  it  important  that  the  word 

*  fire '  should  be  inserted,  as,  according  to  English  law,  fire  was  not 
considered  a  '  peril  of  the  sea.' 

I  then  proposed  that,  before  going  farther  with  the  discussion, 
the  conference  should  appoint  a  small  committee  consisting  of  the 
President,  Herren  Ahlers  and  Duncker,  Judge  Peabody,  and  Dr. 
Rahusen,  to  settle  the  wording  of  the  rules  in  conformity  with  the 
votes  already  taken,  and  to  report  to  a  future  sitting. 

Dr.  Rahusen  suggested  that  the  report  should  be  presented  to 


454  MARITIME   LEGISLATION. 

the  next  conference  of  the  Association,  in  a  year's  time,  so  as  to 
afford  opportunity  for  a  deliberate  and  careful  revision. 

I  informed  the  meeting  that  I  thought  the  committee,  if  now 
appointed,  would  be  able  to  bring  in  its  report  on  Friday. 

The  President  supported  my  proposal. 

Heee  Laeisz  pointed  out  that  there  were  still  a  number  of 
important  questions  of  principle  to  be  discussed,  as,  for  instance, 
that  of  pro  rata  freight,  and  thought  it  would  be  premature  now  to 
appoint  a  committee  of  revision. 

I  replied  that,  on  the  question  of  pro  raid  freight,  the  decision 
of  the  Berne  conference  *  must  be  taken  as  conclusive,  and  that 
this  subject  could  not  now  be  reopened. 

Consul  Meier  supported  the  proposition  of  Dr.  Rahusen. 

M.  Engels  reminded  the  assembly  that  at  Liverpool  it  had 
been  found  possible  to  go  through  all  the  points  one  by  one. 

My  proposition  was  then  put  to  the  vote  and  rejected  by  a 
large  majority. 

The  discussion  on  Rule  2  having  accordingly  been  resumed, 

Herr  Ulrich  objected  to  the  retention  of  the  word  '  ice '  in 
the  rule. 

Herr  Laeisz  then  proposed  that  the  discussion  on  this  subject 
be  adjourned  till  to-morrow  morning;  the  conference  meanwhile 
jiroceeding  with  its  other  business,  as  the  code  now  under  dis- 
cussion had  been  only  recently  placed  in  the  hands  of  members. 

Herr  Ahlers  asked  whether  the  committee  had  prepared  any 
statement  of  reasons  in  support  of  the  code,  there  being  no  one 
present  to  state  the  reasons  on  behalf  of  the  committee. 

I  explained  that  the  code  had  been  prepared,  on  behalf  of  the 
committee,  by  its  secretary,  Dr.  Stubbs,  who  was  unfortunately 
prevented  from  being  present. 

Herr  Aiilers  tlien  proposed  that  the  discussion  should  proceed 
on  the  basis  of  the  Hamburg  Chamber  of  Commerce  rules. 

Consul  Meier  was  also  in  favour  of  this  course,  and  of  the 
adjournment  of  the  debate. 

It  was  accordingly  agreed  that  the  debate  should  be  adjourned, 

'  See  note  at  p.  .^29. 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  4.>5 

On  Thursday,  August  20,  the  conference  reassembled  at  10 
A.M.,  Dr.  Sieveking  presiding,  when  the  discussion  on  bills  of 
lading  was  resumed,  and  tlie  President  suggested  that  it  should 
be  resumed  on  the  basis  of  the  rules  prepared  by  the  Hamburg 
Chamber  of  Commerce,  as  this  seemed  to  be  the  wish  of  most  of 
the  members. 

Herr  Laeisz  dt-sired,  as  Dr.  Stubbs's  draft  appeared  now  to  be 
laid  aside,  to  propose  that  the  conference  should  not  be  considered 
in  any  way  prejudiced  by  the  decisions  of  yesterday.  Otherwise  a 
false  impression  would  be  produced  outside  as  to  the  result  of  the 
conference's  labours. 

The  President,  however,  stated  that  the  votes  taken  yesterday 
must  be  considered  decisive.  Only  questions  of  principle  would 
at  the  present  stage  be  voted  upon  ;  all  questions  merely  affecting 
the  precise  wording  of  the  rules,  or  their  consistency  inter  se^  and 
with  the  resolutions  previously  arrived  at,  being  referred  to  a 
committee  of  revision,  to  be  appointed  later  on. 

On  Ilule  2  of  the  Hamburg  Chamber  of  Commerce  draft.  Dr. 
Rahusen  asked  for  an  elucidation  of  the  phrase  '  common  theft;' 
An  explanation  having  been  given  by  the  President,  the  matter 
was  left  for  the  consideration  of  the  committee. 

Herr  Ulrich  pointed  out  the  importance  of  observing  the 
difference  between  the  various  causes  of  fire,  which  might  be 
occasioned  by  vis  major,  by  negligence,  or  by  error  of  judgment. 
He  also  thought  the  expression  '  laud  damage '  by  no  means 
sufficiently  clear. 

Herr  Ahlers  explained  that  '  land  damage '  was  intended  to 
mean  such  as  would  not  be  externally  discoverable. 

Dr.  Wolffson  thought  '  land  damage  '  should  be  omitted. 
'  Barratry  '  would  also  have  to  be  omitted,  in  accordance  with  the 
decision  arrived  at  yesterday.  And  at  the  end  of  the  rule  words 
should  be  added  to  the  expression  '  prolongation  of  the  voyage  '  to 
show  that  its  prolongation  by  sea  was  meant.  The  word  '  unsea- 
worthiness  '  also  was  too  general. 

Dr.  Fi{AN'CK  wished  the  insertion  of  the  word  '  unless '  instead 
of  '  even  though  '  after  '  accidents  of  navigation.' 

The  conference  ap:reed,  without  a  division,  to  the  omission  of 


456  MARITIME   LEGISLATION. 

the  words  'land  damage.'  Tlie  other  points  raised  by  different 
speakers  were  left  to  the  committee  of  revision,  and  the  rule  was 
passed,  subject  to  such  revision. 

On  Rule  3,  Consul  Meier  desired  the  substitution  of  the 
words  '  any  other  vessel '  for  '  any  other  steamship,'  as  he  thought 
the  shipowner  ought  to  have  liberty  to  tranship  into  a  sailing  ship, 
for  the  completion  of  the  voyage,  if  no  steamer  was  available. 

Here  Ahlers  explained  that  the  rule  under  discussion  was 
only  intended  to  apply  to  steamers. 

Herr  Ulrich  pointed  out  that  the  rule  differed  from  the 
second  paragraph  of  the  New  York  Produce  Exchange  Bill  of 
Lading,  by  the  insertion  of  '  liberty  to  call  at  any  intermediate 
ports,'  which  he  thought  ought  not  to  be  permitted.  Such  a  per- 
mission ought  only  to  be  given  by  a  special  clause  in  special  cases, 
not  by  the  common  form. 

Herr  Ahlers  replied  that  in  this  respect  the  rule  was  inter- 
mediate between  that  of  the  New  York  Produce  Exchange  and 
that  of  the  Liverpool  conference,  under  which  the  permission  was 
not  confined  to  '  intermediate  '  j^orts.  As  a  matter  of  fact,  the 
great  lines  made  no  use  of  this  permission,  but  the  owners  of 
general  steamers  would  always  require  its  insertion. 

Dr.  Raiiusen  objected  to  the  vagueness  of  the  word  'inter- 
mediate,' and  wished  the  clause  struck  out. 

Hekr  Ahlers  pointed  out,  in  reply,  that  it  was  often  impos- 
sible for  the  owner  of  a  general  ship  to  know  beforehand  at  what 
intennediate  ports  his  vessel  would  call,  as  this  would  depend  upon 
the  cargo  he  might  be  able  to  secure.  A  decision  to  strike  out  the 
permission  would  have  no  practical  result,  as  it  would  be  necessary 
always  to  insert  the  clause. 

Consul  ^Ieier  ho])ed  the  clause  would  be  retained,  and  pointed 
out  its  ]iractic;il  utility,  lie  tlitl  not  think  there  would  be  any 
ri'ul  (lifliciiity  in  (li'tciiiiiiiing  what  was  an  intermediate  port. 
I'hus,  on  a  voyage  from  Sydney  to  Hamburg,  Antwerp  would,  but 
Trieste  would  not,  be  an  interniediate  port. 

Dr.  Rahusen  explained  that  he  did  not  wish  to  prohibit  such 
a  liljci't y  wlici'c  there  was  some  reason  for  inserting  it  ;  but,  unless 
it  were  expressly   reserved,  the   sliip[)cr  ought   to  be   entitled   to 


INTERNATIONAL   LAW   OF  AFFREIGHTiMENT.  457 

assume  that  tlie  sliip  would  sail  direct  to  tlic  port  of  destina- 
tion. 

The  Pkesident  pointed  out  that  the  rules  were  not  intended 
all  to  be  obligatory,  but  that,  according  to  the  matters  to  which 
they  related,  some  would  necessarily  be  optional,  so  as  to  take 
effect  only  in  the  absence  of  agreement  to  the  contrary. 

M.  Engels  thought  no  shipowner  would  order  his  ship  to  call 
at  any  intermediate  port  without  some  sufficient  reason.  He 
desired  the  retention  of  the  clause. 

Dr.  Fraxck  seconded  Herr  Ulrich's  motion  entirely  to  omit 
the  liberty  of  calling  on  the  voyage,  which  was,  however,  lost  by  a 
large  majority;  only  7  votes  being  recorded  in  its  favour. 

Dr.  Rahusen's  motion  to  omit  the  words  '  intermediate  ports,' 
having  been  seconded  by  Herr  Ulrich,  was  then  put,  and  was 
also  rejected  by  a  large  majority,  only  G  voting  for  it. 

Dr.  Voigt  proposed  the  omission  of  the  words  '  to  sail  without 
pilots,'  on  the  ground  that  such  a  liberty  would  be  contrary  to  the 
law,  which  in  many  cases  imposed  penalties  on  vessels  sailing 
without  pilots,  and  also  contrary  to  public  policy. 

In  reply  to  the  President,  Dr.  Voigt  said  he  did  not  wish  that 
the  conference  should  adopt  a  resolution  prohibiting  the  insertion 
of  such  a  power,  but  he  desired  that  it  should  not  be  contained  in 
the  model  rules  to  be  adopted. 

Consul  Meier  pointed  out  that  the  captains  of  liners  were  often 
as  well  acquainted  with  the  navigation  of  the  coasts  they  were  ac- 
customed to  as  any  pilot ;  as,  for  instance,  in  the  case  of  steamers 
crossing  every  week  between  London  and  Hamburg.  In  cases  like 
this,  practical  considerations  should  override  the  letter  of  the  law. 
Often,  when  a  pilot  could  not  be  found  at  the  mouth  of  the  Elbe, 
a  Heligolander  was  taken  on  board  as  pilot,  and  this,  in  the 
speaker's  opinion,  was  really  more  dangerous  than  to  sail  without 
a  pilot  at  all. 

Herr  Ahlers  was  of  the  same  opinion.  It  was  not  merely  a 
question  as  to  the  prescriptions  of  German  law,  which  were  cer- 
tainly very  clear  and  express,  but  as  to  those  of  other  States.  He 
referred  particularly  to  a  decision  of  the  highest  tribunal  in  England, 


4o8  MAIUTIME   LEGISLATION. 

which  had  held  that  under  certain  circumstances  it  was  not  an  act 
of  negligence  to  sail  without  pilots. 

Dr.  Kahusen  agreed  with  Dr.  Voigt.  So  far  as  regular  liners 
were  concerned  he  could  agree  with  Herr  Meier,  but  the  rules  now 
under  consideration  were  intended  for  all  kinds  of  ships,  and  under 
such  a  clause  other  vessels,  whose  captains  were  not  similarly  quali- 
fied, would  have  a  dangerous  liberty  conferred  upon  them.  He 
seconded  the  amendment. 

Herr  Ad.  AVoermann  objected  to  the  amendment,  and  pointed 
out  that  pilotage  was  not  everywhere  compulsory  by  law.  In 
many  parts  of  the  world  there  were  no  pilots  to  be  had,  whilst  on  the 
African  coast  and  in  the  East  Indies  they  were  generally  natives, 
who  did  not  at  all  answer  to  European  ideas  of  a  pilot,  and  to  whom 
it  would  be  out  of  the  question  to  commit  the  supreme  direction  of 
the  vessel.  In  the  waters  of  civilised  countries  the  captain  was 
already  compelled  by  law  to  employ  pilots,  and  in  other  places  it 
was  often  very  difficult  to  ascertain  whether  any  real  pilots,  in 
the  European  sense,  were  to  be  had.  He  wished  the  clause  to  be 
retained. 

I  also  opposed  the  amendment,  which  I  considered  contrary  to 
the  spirit  of  the  previous  day's  decision,  but  I  thought  it  should 
be  made  clear  that  it  would  be  negligence  not  to  employ  a  pilot, 
whenever,  under  all  the  circumstances  of  the  case,  it  was  proper  to 
do  so. 

Dr.  "VVolffson  reminded  the  conference  that  the  clause  under 
consideration  would  only  apply  to  the  relation  between  the  ship- 
owner and  the  shipper  or  cargo-owner.  It  would,  of  course,  be  im- 
possible for  the  shipowner  to  liberate  himself  from  liability  in  his 
relations  with  the  public  at  large,  by  means  of  a  clause  in  his  bill 
of  ladiner.  The  meaiiintjr  of  the  clause  he  understood  to  be  that  the 
fact  of  not  having  employed  a  pilot  should  not,  of  itself,  be  consi- 
dered as  proof  of  default  on  the  part  of  the  captain. 

Herr  Aiilkrs  pointed  out  that  the  clause  was  supported  by  the 
German  law,  which  does  not  in  all  cases  impose  the  necessity  of 
pilotage. 

Dr.  Voigt,  in  reply,  defended  his  amendnicnt,  which  was 
rejected  by  a  lai'gc  niajority,  only  5  voting  for  it. 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  450 

Dr.  Wolffsox  then  proposed  that  the  revision  committee 
should  be  instructed  to  add  to  the  rule  words  distinctly  showing 
its  meaning  to  be  that  it  should  not  be  considered  negligence 
not  to  take  a  pilot  unless  the  particular  circumstances  of  the  case 
required  it. 

Hehr  ]\[kier  seconded  the  proposal,  which  was  adopted  by  18 
votes  to  17.    Rule  3  was  then  adopted,  subject  to  this  modification. 

Rule  4  was  passed  without  objection. 

On  Rule  5,  Herr  Ulrich  asked  whether  by  this  clause,  in 
accordance  with  the  German  Commercial  Code,  a  declaration  of 
both  the  value  and  the  nature  of  the  articles  would  be  required. 

Herr  Ahlers  having  replied  in  the  affirmative,  the  rule  was 
adopted  nem.  con. 

On  Rule  6,  Herr  Ulrich  did  not  consider  the  rule  went  far 
enough,  as  it  ought  to  be  extended  so  as  to  provide  against  the  • 
danger  to  other  goods  shipped  in  the  same  vessel. 

Herr  Ahlers  thought  that  such  protection  was  already  given 
by  the  legislation  of  every  country,  and  need  not  be  put  into  the 
bill  of  lading,  which  constituted  a  contract  only  between  the  ship- 
owner and  the  shipper  of  goods. 

I  thought  it  should  be  required  that  dangerous  goods  be  clearly 
marked  as  such  on  the  outside,  and  suggested  that  the  committee 
should  consider  the  wording  of  the  rule  with  this  view. 

Herr  Woermann  was  of  the  same  opinion,  but  thought  the 
words  '  shipped  with  full  disclosure  of  their  nature '  sufficiently 
covered  the  point. 

Herr  Ulrich's  proposition  was  withdrawn,  and  the  rule  passed, 
subject  to  revision. 

On  Rule  7,  Dr.  Rahusen  pointed  out  that  it  was  not  sufficiently 
clearly  expressed  that  the  shipowner  was  entitled  to  pay  the  amount 
of  fines  or  damages,  and  claim  reimbursement  from  the  consignee, 
or,  failing  payment  by  him,  from  the  shipper.  The  observa- 
tion was  referred  to  the  committee  of  revision,  and  the  rule 
adopted. 

On  Rule  8,  Dr.  Stammann  (Hamburg)  objected  to  the  form  of 
the  rule,  and  desired  the  addition  of  words  to  show  that  the  date 
of  signature  of  the  bill  of  lading  was  tlie  moment  from  which  the 


4G0  MARITIME  LEGISLATION. 

sliipoTvuer's   responsibility  for   the   goods    would   begin    and    the 
shipper's  would  cease. 

Here  Ahlers  objected  to  such  an  addition,  and  pointed  out 
that  bills  of  lading  often  had  to  be  ante-dated  or  post-dated. 

Dk.  Stammaxn  replied  that  he  did  not  object  to  the  rule  of 
German  law  on  the  subject,  but  contended  that  it  was  at  all  events 
necessary  to  lay  down  in  the  rule  that  the  bill  of  lading  could  not 
be  signed,  so  as  to  make  the  shipowner  liable,  before  loading 
began. 

Consul  Preuss  opposed  the  addition,  which  would  be  entirely 
inapplicable  to  the  custom  at  Konigsberg,  by  which  cargoes  are 
loaded  from  lighters.  Such  an  addition  would  run  counter  to 
everyday  practice. 

Dr.  Kahusex  agreed  with  Herr  Ahlers.  Bills  of  lading  ought, 
above  all  things,  to  be  strictly  truthful,  and  such  an  addition  as 
proposed  would  often  be  opposed  to  the  facts  of  the  case.  In 
Holland  the  expression  in  use  was,  '  Received,  for  the  purpose  of 
being  loaded.' 

The  amendment  was  not  put,  for  want  of  a  seconder,  and  the 
rule  was  adopted. 

Rules  9  and  10  were  passed,  the  latter  subject  to  some  observa- 
tions with  regard  to  the  precise  wording. 

On  Rule  11,  Herr  Suckau  thought  the  rule  unnecessary.  He 
inquired  whether,  in  conformity  with  German  law,  full  freight 
would  be  payable  for  liquids  absorbed  by  the  remainder  of  the 
cargo. 

Herr  Ahlers  said  that  there  was  a  diversity  in  the  laws  of 
different  countries  on  this  point,  and  the  Chamber  of  Commerce 
had  decided  against  adopting  the  rule  of  German  law. 

Dr.  Fj{ANCK  proposed  the  addition  of  the  words  '  liquids 
excepted.' 

M.  Engels  inquired  whcllicr  fiill  freight  was  also  to  be  paid 
on  grains  and  other  goods  which  had  increased  in  weight  by  the 
absorption  of  moisture.  To  him,  as  a  shipowner,  such  a  provision 
could  only  be  agreeable. 

IIkhr  Attlhrs  stated  that  th<>  rules  were  purposely  silent  on 
this  point,  as  it  was  a  question  to  be  decided  on  the  facts  of  each 


INTERNATIONAL  LAW   OF  AFFREIGHTMENT.  4G1 

particular  case.  The  object  of  tlie  rule  was  simply  to  exclude  the 
right  of  abandonment  of  damaged  goods  given  by  the  German 
law. 

The  Pkesident  thought  it  would  be  desirable  to  lay  it  down 
distinctly  that  the  right  of  abandonment  of  damaged  goods  for 
freight  is  excluded,  and  would,  if  the  rule  were  adopted,  direct  the 
committee  to  revise  it  in  this  sense. 

Herr  Suckau  having  proposed  that  the  right  of  abandonment 
of  damaged  goods  against  freight  be  retained,  which  was  seconded 
by  Dr.  Franck,  this  proposal  was  rejected  by  21  votes  against 
11,  and  the  principle  of  the  rule,  as  stated  by  the  President,  was 
accepted. 

Eule  12  was  adopted  without  discussion. 

On  Kule  13,  Herr  Ulrich  considered  that  the  lien  ought  also 
to  extend  to  contributions  in  respect  of  General  Average,  and 
desired  that  a  clause  to  this  effect  should  be  added  to  the  rule. 

Herr  Ahlers  expressed  approval  of  this  suggestion. 

M.  Engels  also  supported  the  proposal. 

The  proposition  was  accepted,  and  referred  to  the  committee  to 
carry  out. 

On  Rule  14,  M.  Engels  thought  there  was  some  inconsistency 
between  it  and  Rule  13,  but  on  explanations  being  given,  the  rule 
was  adopted. 

On  Rule  15,  Dr.  Rahusen  thought  some  indication  should  be 
inserted  as  to  the  mode  of  ascertaining  the  market  price  at  the 
port  of  destination. 

Herr  Ahlers  thought  this  must  be  left  to  the  laws  of  the 
different  countries  in  which  the  valuation  would  have  to  be  made. 

Dr.  Rahusen  suggested  the  insertion,  for  the  sake  of  clearness, 
of  the  words  '  freight  and '  before  '  all  charges  saved.'  The  sugges- 
tion was  unanimously  accepted,  and  the  rule  passed  with  tliis 
modification. 

On  Rule  16,  Dr.  Rahusen  asked  what  was  the  precise  moaning 
to  be  attached  to  the  words  '  unless  expressly  recognised.' 

Herr  Ahlers  replied  that  the  effect  of  the  clause  '  weight, 
measure,  quality,  contents,  and  value  unknown '  was  to  shift  the 
burden  of  proof,  and  it  was  thought  necessary  to  show  that  the 


462  MARITIME   LEGISLATION. 

presumption  in  favour  of  tlie  shipowner  was  not  to  be  rebutted  by 
the  mere  fact  that  they  were  mentioned  in  the  bill  of  lading.  On 
the  other  hand,  the  parties  were  to  remain  free  to  enter  into  a 
special  contract. 

Dr.  Fraxck  thought  the  whole  clause  ought  to  be  omitted. 

Dr.  C4EXSEL  stated  that  merchants  residing  inland  complained 
greatly  of  this  clause,  which  often  stood  in  the  way  of  their  obtain- 
ing: redress  for  losses  sustained  by  them.  He  desired  that 
captains  should  be  compelled  to  measure  and  weigh  goods  delivered 
to  them. 

Herr  Ahlers  replied  to  Dr.  Franck  that  the  rule  only  ex- 
pressed a  stipulation  which  had  already  become  universal.  No 
shipowner  would  be  willing,  considering  the  different  countries  in 
which  goods  were  received,  to  undertake  the  responsibility  for 
weight,  &c. 

Dr.  France's  proposal  to  omit  the  rule  was  seconded  by  Herr 
SuCKAU,  but  was  lost,  only  3  voting  for  it. 

Dr.  Gensel  thereupon  declined  to  make  a  formal  motion  in 
support  of  his  view. 

Herr  Steinacker  expressed  his  accord  with  Dr.  Gensel's 
views,  and  desired  that  a  resolution  embodying  them  should  be 
adopted. 

Herr  Woermann  pointed  out  that  captains  had  not  usually 
time  to  undertake  such  duties  as  were  proposed  to  be  cast  upon 
them.     He  strongly  opposed  the  idea. 

The  rule  was  then  adopted  without  further  objection. 

C)n  Rule  17,  Dr.  Fijanck  preferred  its  omission,  on  the  ground 
that  the  York- Antwerp  llules  were  often  equivocal. 

I  replied  to  this  objection,  but  for  want  of  a  seconder  the 
motion  was  not  put,  and  the  rule  was  adopted. 

On  I'lile  18,  Dr.  Rahusen  remarked  lliat  the  words  'freight 
to  be  paid  on  delivery  '  ought  not  to  exclude  the  right  of  stipu- 
lating for  post-payment  of  freight. 

Herr  Woermann  wished  the  insertion  of  words  making  it  per- 
missible to  stipulate  in  the  bill  of  lading  for  payment  in  any 
currency  therein  indicated. 

Hki{R   Aiieers  re])lied   to   Dk.    Kaiitskn    that    the  words    'on 


INTERNATIONAL  LAW   OF  AFFREIGHTMENT.  4G3 

delivery  '  were  only  intended  to  negative  the  English  custom,  by 
which  a  fortnight  or  a  month  was  often  allowed  for  payment  of 
freight. 

Herr  Woermann's  proposal  was  accepted,  and  the  rule  was 
passed,  subject  to  an  addition  to  that  effect  to  be  made  by  the 
committee. 

Pjio  IIata  Freight. 

The  rules  having  thus  been  completed,  Herr  Ahlers  said  the 
Hamburg  Chamber  of  Commerce  had  decided  not  to  insert  any 
provision  with  regard  to  pro  rata  freight,  but  simply  to  raise  the 
question  whether  such  a  provision  should  l)o  introduced  by  the 
conference  or  not.  In  case  the  conference  should  desire  to  insert 
any  such  provision,  he  would  recommend  its  adoption  of  Ilules  10 
and  11  of  the  form  adopted  by  the  Liverpool  conference.' 

Dr.  Rahusen  thought  it  inadvisable  to  discuss  the  question  at 
present. 

Dr.  Wolffson  was  also  decidedly  opposed  to  its  discussion, 
which  he  thought  impracticable  at  the  present  conference. 

I  hoped  the  conference  would  decide  that  |)?-o  rata  freight  ought 
not  to  be  allowed  at  all,  and  drew  attention  to  the  decision  to  that 
effect  of  the  Berne  conference.^ 

^  The  following  are  the  rules  referred  to  : — 

10.  If  the  ship  is  able  to  carry  the  goods  to  their  destination,  but  the 
goods,  by  reason  of  damage  sustained  or  of  their  own  nature,  are  not  fit  to  be 
carried  all  the  way,  and  if  such  goods  have  received  an  enhancement  of  value 
by  reason  of  their  partial  carriage,  the  ship  shall  be  entitled  to  a  jjro  rata 
freight  in  proportion  to  the  distance  performed,  which  fx-eight  is  in  no  case 
to  exceed  the  amount  of  such  enhancement  of  value.  Pro  rata  freight  is 
admissible  in  no  other  case  than  that  dealt  with  in  the  preceding  sentence, 
unless  there  be  an  acceptance  of  the  goods  by  the  shipper  or  owner  of  the 
goods. 

11.  AYhen  the  goods  are  fit  to  be  carried  to  their  destination,  but  the  ship 
is  unable  to  carry  them,  the  shipowner  may  earn  full  freight  by  sending  the 
goods  to  their  destination  at  his  own  expense  within  reasonable  tune  in 
another  bottom  :  this  right  is  not  affected  by  an  abandonment  of  the  sliip  by 
her  crew  or  to  the  underwriters  :  and  the  ship  is  to  be,  for  tliis  purpose, 
deemed  unable  to  carry  the  goods  to  their  destination,  if  she  either  cannot  be 
repaired  at  all,  or  cannot  be  repaired  except  at  an  expense  exceeding  her  value 
when  repaired. 

-  The  following  resolution  was  adopted  at  the  Berne  conference  of  the 
Association,  1880  ('Report,'  pp.  124  to  127)  by  15  votes  against  3  : — 
'That  freight  ^Jro  raid  itincris  i^cracii  should  be  abolished.' 


4G4  MARITIME   LEGISLATION. 

Herr  Suckau  was  opposed  to  the  introduction  of  a  rule  on  jyo 
rata  freight,  as  he  feared  that  its  insertion  might  prove  a  hindrance 
to  the  general  adoption  of  the  rules. 

Here  Laeisz  was  also  opposed  to  such  a  rule,  and  pointed  out 
that  the  Berne  resolution,  referred  to  by  Dr.  Wendt,  could  no 
longer  be  considered  binding,  as  the  Liverpool  conference  had 
come  to  a  contrary  decision. 

The  question  whether  any  rule  on  the  subject  should  be  inserted 

having  been  put  to  the  conference  by  the  President,  only  two  votes 

were  given  in  favour  of  that  course,  and  the  subject  accordingly 

di'opped. 

Eesponsibility  for  Negligence. 

CoxsuL  Meier  wished  to  make  a  suggestion,  now  that  the  rules 
had  all  been  gone  through,  with  the  view  of  making  them  generally 
acceptable.  He  thought  it  might  with  some  justice  be  contended 
that  the  shipowner,  having  the  j)ersonal  selection  of  the  captain, 
ought  to  be  responsible  for  his  negligence,  and  to  this  extent  he 
would  be  willing  to  accept  yesterday's  decision  on  the  question. 
But  it  seemed  to  him  preposterous  to  lay  down  that  the  sbij^owner 
Avas  to  be  responsible  for  the  acts  of  the  officers  and  crew,  about 
whom  he  could  personally  know  very  little,  often  nothing  at  all, 
and  who  were  frequently  engaged  in  distant  ports  where  the 
captain  might  have  to  fill  up  his  crew  as  best  he  could,  with  almost 
no  choice.  He  wished  therefore  to  suggest  as  a  compromise  that 
the  decision  of  yesterday  should  be  modified  to  this  extent,  as  he 
felt  sure  that  if  the  rules  were  passed  as  they  at  present  stood  on 
this  point  they  would  have  no  chance  of  acceptance  by  shipowners, 
and  the  work  of  the  conference  would  go  for  nothing. 

The  I'ltESiDENT  pointed  out  that  the  decision  arrived  at  yester- 
day could  not  be  modified  to-day,  and  he  could  not  allow  it  to  be 
again  brought  into  question. 

Consul  Meier  then  expressed  his  willingness  to  withdraw  the 
proposal,  in  deference  to  the  President's  ruling. 

I  said  that,  as  mover  of  the  resolution  adopted  yesterday,  I 
should  be  willing  to  accept  Consul  Meier's  proposal  so  far  as  it 
concerned  the  crew,  but  I  did  not  ililid-;  it  admissible  with  regard 
to  the  (jflicers  any  more  iiian  the  ciqitain. 


INTERNATIONAL  LAW  OF   AFFKEIGIITMENT.  405 

The  President  said  that,  if  a  compromise  acceptable  to  both 
parties  could  bo  arrived  at  by  the  conference,  nothing  would  be 
more  desirable,  and  there  would  be  no  objection  to  a  modification 
under  such  circumstances.  But,  uidess  this  was  the  case,  he  could 
not  allow  the  decision  of  yesterday  to  be  modified  by,  perhaps,  a 
small  majority  on  the  other  side  to-day. 

M.  Engels  protested  against  the  owner  being  held  responsible 
even  for  tlie  negligence  of  the  captain,  whilst  he  agreed  that  to 
make  them  responsible  for  their  crews  was  simply  preposterous,  and 
he  was  sure  that  the  resolution  of  the  conference  could  not,  on  that 
account,  ever  take  effect.  He  pointed  out  that  such  responsibility 
was  not  excluded  by  the  New  York  bill  of  lading,  which  had  been 
prepared  by  the  shippers  themselves,  who  certaiidy  knew  what  the 
shippers'  interests  were. 

Consul  Meier  submitted  that  the  bill  of  lading  should  be  read 
a  second  time,  and  that  it  would  be  competent  to  insert  modifica- 
tions on  the  second  reading. 

Herr  Ulrich  was  decidedly  opposed  to  reopening  the  question 
in  any  form.  The  decision  of  the  conference  had  already  been 
published  in  the  press  and  gone  out  into  the  world,  and  it  would 
seriously  affect  the  reputation  of  the  Association  if  it  were  now 
varied.  Moreover,  some  delegates  who  took  a  special  interest  in  the 
question  had  gone  home,  supposing  it  to  be  finally  settled,  and  it 
would  be  unfair  to  them  to  alter  the  decision. 

The  President  said  that  it  was  evident,  after  what  had  been 
said,  that  there  was  no  prospect  of  arriving  at  a  compromise  ac- 
ceptable to  all  parties,  and  he  must  therefore  decline  to  allow  the 
question  to  be  further  discussed.  The  Association  did  not  recognise 
any  second  reading. 

The  committee  of  revision  was  then  appointed,  consisting  of 
the  President,  Herr  Ahlers,  Dr.  Rahusen,  Judge  Peabody,  and  Herr 
Ulrich. 

On  Friday,  August  21,  the  conference  reassembled  under  the 
presidency  of  myself,  when 

Dr.  Sieveking  presented,  on  behalf  of  the  committee  of  re- 
vision, the  l)ill  of  lading  and  rules  as  revised  by  them.  They 
were  as  follows  : — 

]I  11 


4fiG  MARITIME   LEOISLATIOX. 

:Mor)EL  Bill  of  Lading  (as  brought  ix  ry  the  Committee 
OF  Revision). 

Shipped,  in  apparent  good  order  and  condition,  on  board  the 
ship  whereof  is  master  for  the  present  voyage  ,  now 

Ivino-  in  the  port  of  and  bound  for          ,         being  marked  and 

numbered  as  per  margin,  to  be  carried  and  delivered  at  the  port  of 
unto  or  order  on  his  paying  freight  for  the  said 

goods  at  the  rate  of 

Subject    to   all    the    conditions    of    the    Hamburg    Rules    of 
Affreightment. 

In  witness  whereof  the  master  of  the  said    ship   has  signed 
bills    of  lading,  all  of  this  tenor  and  date,  one  of  which 
being  accomplished  the  others  to  stand  void. 
Dated  at  ,  188     . 

(Signed)  Master. 

Hamburg  Rules  of  Affreightment. 


The  shipowner  shall  be  responsible  that  his  vessel  is  properly 
equipped,  manned,  provisioned,  and  fitted  out.  and  in  all  respects 
seaworthy  and  capable  of  performing  her  intended  voyage,  and 
for  the  stowage  and  right  delivery  of  the  goods.  He  shall  also  be 
responsible  for  the  barratry,  faults,  and  negligence,  but  not  for 
errors  in  judgment,  of  the  master,  officers,  and  crew. 

11. 

The  shipowner  shall  not  be  resi)onsible  for  loss  or  damages 
arising  from  vis  majo}\  public  enemies,  civil  commotions,  pirates, 
robbers,  fire,  explosion,  bursting  of  boilers,  breakage  of  shafts  or 
screws,  nor  for  any  latent  defect  in  hull  or  machinery  (not  result- 
ing from  want  of  due  diligence  by  the  owner,  husband,  or  manager 
of  the  ship),  nor  for  the  cargo's  decay,  putrefaction,  rust,  sweat, 
change  of  character,  drainage,  leakage,  breakage,  or  any  damage 
arising  from  the  nature  of  the  goods  shipped,  or  such  defective 
packing  as  could  not  be  iKjticed  oxtci-iially.  nor  for  tlie  obliteration 


INTEUNATIOXAL   LAW   OF   AFFIIEIGIITMICXT.  -J07 

of  marks,  numbers,  addresses,  or  descriptions  of  goods  shipped, 
nor  for  any  damage  or  loss  caused  by  accidental  prolongation  of 
the  voyage,  nor  for  other  accidents  of  the  seas,  unless  it  is  proved 
that  such  exception  comes  under  iliile  I. 

III. 

Steamship  to  be  at  liberty  to  call  at  any  intermediate  ports,  to 
sail  without  pilots,  provided  such  sailing  does  not  constitute  a 
fault  or  negligence,  to  tow  and  assist  vessels  in  distress,  and  to 
deviate  for  the  purpose  of  saving  life  or  property ;  also  at  liberty, 
in  case  the  ship  shall  put  into  a  port  of  refuge  for  repairs,  to  tran- 
ship the  goods  to  their  destination  by  any  other  vessels,  and  at 
liberty  to  convey  goods  in  lighters  to  and  from  the  ship  at  shipper's 
risk,  but  at  ship's  expense. 

IV. 

Quality-marks,  if  any.  to  be  of  the  same  size  as  and  contiguous 
to  the  leading  marks  ;  and  if  inserted  in  the  shipping  notes  ac- 
cepted by  the  mate,  the  master  is  bound  to  sign  bills  of  lading 
conformable  thereto. 

V. 

Ship  not  accountable  for  gold,  silver,  bullion,  specie,  docu- 
ments, jewellery,  works  of  art,  or  other  precious  articles,  unless 
bills  of  lading  are  signed  therefor  with  the  value  therein  ex- 
pressed, and  a  special  agreement  be  made. 

VI. 

Shipper  accountable  for  any  loss  or  damage  to  ship  or  cargo 
caused  by  inflammable,  explosive,  or  dangerous  goods,  shipped 
without  full  disclosure  of  their  nature,  whether  such  shipper  shall 
have  been  aware  of  it  or  not,  and  whether  such  shipper  be  prin- 
cipal or  agent ;  such  goods  may  be  thrown  overboard  or  destroyed 
by  the  master  or  owner  of  the  ship  at  any  time  without  compen- 
sation. 

VII. 

Shipper  and  consignee  to  be  responsible  tor  all  fines  or 
damages  which  the  ship  or  cargo  may  incur,  or  suffer,  by  reason 


408  MARITIME   LEGISLATION. 

of  incorrect  or  insufficient  marking  of  packages  or  description  of 

their  contents. 

VIII. 

Goods  delivered  to  the  ship,  whilst  on  quay  awaiting  shipment, 
to  be  considered  as  taken  on  board,  as  far  as  the  shipowner's 
responsibility  is  concerned. 

IX. 

Goods  once  shipped  cannot  be  taken  away  by  the  shipper 
except  upon  payment  of  full  freight,  and  compensation  for  any 
damages  sustained  by  the  shipowners  through  such  taking  away. 

X. 

In  case  the  ship  shall  be  prevented  from  reaching  her  destina- 
tion by  quarantine,  blockade,  ice,  or  the  hostile  act  of  any  Power, 
the  master  or  owners  may  discharge  the  goods  into  any  depot  or 
lazaretto,  or  at  the  nearest  convenient  port ;  the  shippers  and 
consignees  to  be  responsible  for  all  expenses  thereby  incurred  upon 

the  goods. 

XI. 

No  goods  can  be  abandoned  for  freight.  This  rule  does  not 
applv  to  liquids. 

XII. 

If  the  goods  be  not  taken  by  the  consignee  without  delay,  or 
within  such  time  as  is  provided  by  the  regulations  of  the  port  of 
discharge,  they  may  be  stored  or  discharged  into  hulks  or  lighters 
by  the  master  at  the  expense  and  risk  of  their  owners ;  provided 
always,  that  due  notice  is  given  of  the  arrival  of  the  ship  and  the 
commencement  of  the  discharge,  and  that  the  same  does  not  begin 
at  night  or  at  any  unreasonable  hour. 

XIIT. 

Ship  to  have  a  lien  on  all  goods  for  payment  of  freight  and 
charges,  including  dead  freight,  demurrage  at  the  port  of  destina- 
lion,  forwarding  charges,  charges  for  carriage  to  port  of  shipment, 
:in(l   thr'  fines,  damages,  and  expenses  mentioned  in  I^ules  VII. 


INTEUNATIONAL   LAW   OF  AFFEEIGHTMENT.  4(39 

and  X.,  and  for  General  Average  claims,  and  to  be  entitled  to  re- 
cover from  the  shipper  the  difference  between  the  amount  of  freight 
stipulated  in  the  bill  of  lading  and  the  proceeds  of  the  goods, 
should  the  freight  not  be  paid  otherwise, 

XIV. 

To  the  extent  of  the  value  of  the  lien,  freight,  which  by  the 
terms  of  the  bill  of  lading  is  made  payable  by  the  consignee,  can- 
not be  demanded  from  the  shipper  after  the  master  has  parted  with 
his  lien  on  the  goods. 

XV. 

In  the  event  of  claims  for  short  delivery  when  the  ship  reaches 
her  destination,  the  price  to  be  the  market  price  at  the  port  of 
destination  on  the  day  of  the  shijs's  entry  at  the  custom-house,  less 
freight  and  charges  saved. 

XVI. 

Weight,  measure,  quality,  contents,  and  value,  although  men- 
tioned in  the  bill  of  lading,  to  be  considered  as  unknown  to  the 
master,  unless  expressly  recognised  and  agreed  to  the  contrary. 
Simple  subscription  not  to  be  considered  as  such  agreement. 

XVII. 

General  Average  to  be  paid  according  to  York  and  Antwerp 
Rules. 

XVIII. 

Freight,  if  payable  on  delivery,  to  be  paid  immediately  after 
delivery,  and  in  the  currency  stipulated  in  the  bill  of  lading,  or  at 
consignee's  option  in  cash,  without  discount,  at  the  rate  of  exchange 
of  bankers'  bills  at  sight  current  on  the  day  of  the  ship's  entry  at 
the  custom-house. 

XIX. 

Nothing  contained  in  these  rules  is  to  be  construed  so  as  to 
authorise  an  argument  to  the  contrary. 

The  form  was  then  again  gone  tlirungli  and  read  elau.se  by 
clause. 


470  MARITIME   LEGISLATION. 

On  the  form  of  bill  of  lading  being  read,  Hekk  Laeisz  objected 
to  the  title  '  Hambui-g  Rules  of  Affreightment,'  and  wished  the 
name  '  International "  to  be  given  them  instead.  As  the  rules  were 
entirely  contrary,  on  a  main  point,  to  those  proposed  by  the  Ham- 
bun'  Chamber  of  Commerce,  he  thought  the  title  calculated  to 
convey  a  wrong  impression. 

Dr.  Sievekincj  pointed  out  that  the  word  '  International'  would 
not  be  distinctive,  and  said  that  the  committee  had  thought  it 
desirable  to  adopt  some  title  which,  like  that  of  the  '  York  and 
Antwerp  Kules  '  on  General  Average,  might  soon  become  universally 
adopted  and  understood. 

Herr  Woermann  also  strongly  objected  to  the  word  '  Hamburg ' 
in  the  title. 

Dr.  Franck  hoped  the  title  would  be  retained. 

On  a  show  of  hands,  the  title  was  adopted  by  a  large  nmjority. 

On  Rule  2.  Consul  Preuss  desired  the  omission  of  the  words, 
'  or  such  defective  packing  as  could  not  be  noticed  externally.' 
The  proposal  was  novel,  and  would  be  far-reaching  in  its  results. 

Dr.  Sieveking  pointed  out  that  the  proposal  was  in  conformity 
with  the  prescription  of  the  German  Commercial  Code. 

Herr  Laeisz  desired  the  addition  of  the  words  '  with  due  care ' 
before  '  be  noticed  externally.' 

Dr.  >SiEVf:KlNG  replied  that  the  counnittee  had  not  thought  it 
necessary  to  be  more  pri'cise  than  the  German  Code,  the  meaning 
of  which  was  well  understood. 

Herren  Preuss  and  Lakisz  thereupon  withdrew  their  ob- 
jections. 

On  Kiile  o,  Herr  Wukk.mann  asked  whether  it  might  not  be 
inferred  from  the  mention  of  steamships  in  this  rule  that  the  rules 
were  not  intended  to  a])])ly  to  sailing  vessels. 

J)R.  SiE\EKiN<i  i-eplied  Ijy  referring  to  Rule  1 !»,  as  excluding 
any  such  inference. 

IIkiu;  JiAEisz  wished  tlie  w(u-(ls  '  by  any  conveyance  "  to  be 
substituted  for  '  by  (itlier  vessels." 

Dr.  Sli;VKKI.\(i  p')inted  out  tlie  exlremely  wide  bearing  of  such 
jin  arncndiiient.  wliicii  woiihl  jidiiiit  oft  lie  trunslni^si(lu  of  goods  l»y 
railway  across  the  contiMciil  of  I'ini'ope. 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  471 

Herr  Laeisz  witliLlrew  the  proposal. 

Oil  Rule  8,  M.  Engels  objected  that  this  was  not  in  accordance 
with  the  decision  of  the  conference  yesterday,  but  after  some  ob- 
servations from  Dr.  llAHrsKN  and  Dr.  Sikvekinc;,  theoljjection  was 
not  pressed. 

Some  remarks  were  made  on  Rule  11  by  Dr.  GCtschow,  but  no 
amendment  was  proposed. 

On  Rule  18,  Dr.  Martin  pointed  out  that  the  words  '  freight  if 
payable  on  delivery  to  be  payable  immediately  after  delivery  '  were 
liable  to  be  misunderstood,  and  proposed  to  substitute  the  words 
'  freight  if  not  payable  in  advance.' 

Herr  Laeisz  proposed  the  insertion  of  the  words  •  at  port  of 
destination,'  instead  of  '  on  delivery.'' 

This  alteration,  with  the  further  substitution  of  the  word  '  on  ' 
for  'after'  next  to  'immediately,'  was  adopted  unanimously. 

On  Rule  19,  Judge  Peabody  proposed  the  substitution  of  the 
words  '  in  respect  of  anything  not  contained  in  these  rules  '  for  the 
words  '  to  the  contrary,'  and  the  amendment  was  accepted  unani- 
mously. 

Mr.  Alexander  called  attention  to  the  fact  that  the  form  of 
bill  of  lading  now  adopted  restored  the  expressions  providing  for  a 
series,  of  which,  one  being  accomplished,  the  rest  were  to  stand 
void,  although  the  Liverpool  conference  had  decided,  by  a  large 
majority,  that  it  was  desirable  to  have  the  bills  of  lading  '  drawn 
as  first,  second,  or  third,  the  first  of  which  bills  being  accomplished, 
the  others  to  stand  void.'  He  thought  the  question  should  not  be 
passed  over  in  silence. 

Herr  Ahlers  thought  it  better  to  keep  to  the  accustomed  form, 
and  the  conference  decided  accordingly. 

Herr  Laeisz  thought  that  the  bill  of  lading  and  rules  ought 
now  to  be  put  to  the  meeting  en  bloc,  as  was  done  at  the  Liverpool 
conference. 

Dr.  Sieveking  was  decidedly  opposed  to  such  a  course,  as  the 
bill  of  lading  might  now  be  rejected  by  a  small  majority  on  account 
of  a  single  clause  to  which  they  had  objected,  and  which  had  been 
carried  against  them  at  a  [)iwioiis  sitting,  and  thus  the  whole  work 
of  the  conference  would  be  nullitied. 


472  MARITIME   LEGISLATION^. 

As  chairman  of  the  sitting,  I  ruled  that  this  could  not  be  done. 
The  bill  of  lading,  as  passed,  was  as  follows  : — 

Model  Bill  of  Ladlnht  (as  jinnlli/  adopted). 

Shipped,  in  a^jparent  good  order  and  condition,  on  board  the 
ship  whereof  is  master  for  the  present  voyage  ,  now 

lying   in  the   port  of  and   bound  for  ,  being 

marked  and  numbered  as  per  margin,  to  be  carried  and  delivered  at 
the  port  of  imto  or  order  on  his  paying  freight  for 

the  said  goods  at  the  rate  of 

Subject  to  all  the  conditions  of  the  Hamburg  Eules  of 
Affreightment. 

In  witness  whereof  the  master  of  the  said  ship  has  signed 
bills  of  lading,  all  of  this  tenor  and  date,  one  of  which  being 
accomplished  the  others  to  stand  void. 

Dated  at  ,  188     . 

(Signed)  Master. 

HAMHri{(i  Hulks  of  AFFRP:KiHTMi:NT. 


The  shipowner  shall  be  responsible  that  his  vessel  is  properly 
equipped,  manned,  provisioned,  and  fitted  out,  and  in  all  respects 
seaworthy  and  capable  of  performing  her  intended  voyage,  and  for 
the  stowage  and  right  delivery  of  the  goods.  He  shall  also  be 
responsible  for  the  barratry,  faults,  and  negligence,  but  not  for 
errors  in  judgment,  of  the  master,  officers  and  crew. 

II. 

The  ship'iwiicr  shall  iidt  I»e  res])onsil)]e  for  loss  or  ilaniages 
arising  from  vis  major.,  public  enemies,  civil  comtnotions,  pirates, 
robbers,  fire,  explosion,  bursting  of  boilers,  breakage  of  shafts  or 
screws,  nor  for  any  latent  defect  in  hull  or  machinery  (not  resulting 
from  want  of  due  diligence  by  the  owner,  husband,  or  nianager  of 
the  ship),  nor  for  the  cargo's  decay,  putrefaction,  rust,  sweat, 
cliange  of  cliaracler.   drainage,   leakage,  breakage,  or  any  damage- 


INTERNATIONAL  LAW   OF   AFFREIGHTMENT.  473 

arising  from  the  nature  of  the  goods  shipped,  or  such  defective 
packing  as  could  not  be  noticed  externally,  nor  for  the  obliteration 
of  marks,  numbers,  addresses,  or  descriptions  of  goods  shipped, 
nor  for  any  damage  or  loss  caused  by  accidental  prolongation  of 
the  voyage,  nor  for  other  accidents  of  the  seas,  unless  it  is  proved 
that  such  exception  comes  under  Rule  I. 

III. 

Steamship  to  be  at  liberty  to  call  at  any  intermediate  ports,  to 
sail  without  pilots,  provided  such  sailing  does  not  constitute  a  fault 
or  negligence,  to  tow  and  assist  vessels  in  distress,  and  to  deviate 
for  tlie  purpose  of  saving  life  or  property  ;  also  at  liberty,  in  case 
the  ship  shall  put  into  a  port  of  refuge  for  repairs,  to  tranship  the 
goods  to  their  destination  by  other  vessels,  and  at  lil)erly  to  convey 
goods  in  lighters  to  and  from  the  ship  at  shipper's  risk,  but  at 
ships  expense. 

IV. 

Quality-marks,  if  any,  to  be  of  the  same  size  as  and  contiguous 
to  the  leading  marks  ;  and  if  inserted  in  the  shipping  notes  accepted 
by  the  mate,  the  master  is  bound  to  sign  bills  of  lading  conformable 
thereto. 

V. 

Ship  not  accountable  for  gold,  silver,  bullion,  specie,  docu- 
ments, jewellery,  works  of  art,  or  other  precious  articles,  unless 
bills  of  lading  are  signed  therefor  with  the  value  therein  expressed 
and  a  special  agreement  is  made. 

VI. 

Shipper  accountable  for  any  loss  or  damage  to  ship  or  cargo 
caused  by  inflammable,  explosive,  or  dangerous  goods,  shipped 
without  full  disclosure  of  their  nature,  whether  such  shipper  shall 
have  been  aware  of  it  or  not,  and  whether  such  shipper  be  prin- 
cipal or  agent :  such  goods  may  be  thrown  overboard  or  destroyed 
by  the  master  or  owner  of  the  sliiji  at  any  time  without  compensa- 
tion. 


474  MARITIME   LEGISLATION. 

YII. 

Shipper    and    consiguee    to    be    respousiblo    fur     all     Hues     or 

damages  which  the  ship  or  cargo  may  incur,  or  suffer,  by  rc.-asou 

of  incorrect   or  insufficient  marking  of  packages  or   description  of 

their  contents. 

VIII. 

Goods  delivered  to  the  shi^D,  whilst  on  quay  awaiting  shipment, 
to  be  considered  as  taken  ou  board,  as  far  as  the  shipowner's 
responsibility  is  concerned. 

IX. 

Goods  once  shipped  cannot  be  taken  away  by  the  shipper, 
except  upon  payment  of  full  freight,  and  compeusation  for  any 
damages  sustained  by  the  shipowners  through  such  taking  away. 

X. 

In  case  the  ship  shall  be  prevented  from  reaching  her  destina- 
tion by  quarantine,  blockade,  ice,  or  the  hostile  act  of  any  Power, 
the  master  or  owners  may  discharge  the  goods  into  any  depot  or 
lazaretto,  or  at  the  nearest  convenient  port ;  the  shippers  and 
consignees    to   be    responsible    for  all  expenses    thereby  incurred 

upon  the  goods. 

XI. 

No  goods  can  1)e  abandoned   for  freight.     This   rule  does  not 

a])plv  to  liquids. 

XII. 

If  the  goods  be  not  taken  by  the  consignee  without  delay,  or 
within  such  time  as  is  provided  by  the  regulations  of  the  port  of 
discharge,  they  may  be  stored  or  discharged  into  hulks  or  lighters 
by  the  master  at  the  expense  and  risk  of  their  owners  ;  provided 
always,  that  due  notice  is  given  of  the  arrival  of  the  ship  and  the 
commencement  of  the  discharge,  and  that  the  same  does  not  liegin 
at  night  or  at  any  unreasonable  hour. 

XIII. 

Shij)  to  have  a  lien  on  all  goods  for  payment  of  freight  and 
charges,  including  dead  Crfiglit.  dfiiiurrage  at  tlif  ])ort  of  de.'^t  ina- 


INTERNATIONAL   LAW  OF  AFFREIGHTMENT.  475 

tiou,  forwarding  charges,  charges  for  carriage  to  port  of  sliipment, 
and  the  fines,  damages,  and  expenses  mentioned  in  Rules  VII. 
and  X.,  and  for  General  Average  claims,  and  to  be  entitli.-d  tu 
recover  from  the  shipper  the  difference  between  the  amount  of 
freight  stipulated  in  the  bill  of  lading  and  the  proceeds  of  the 
goods,  should  the  freight  not  be  paid  otherwise. 

XIV. 

To  the  extent  of  the  value  of  the  lien,  frt;ight,  whicli  by  the 

terms  of  the  bill  of  lading  is  made    payable  by  the    consignee, 

cannot  be  demanded  from  the  shipper  after  the  master  has  parted 

with  his  lien  on  the  goods. 

XV. 

In  the  event  of  claims  for  short  delivery  when  the  ship  reaches 

her  destination,  the  price  to  be  the  market  price  at  the  port  of 

destination  on  the  day  of  the  ship's  entry  at  the  custom-house,  less 

freight  and  charges  saved. 

XVI. 

Weight,  measure,  quality,  contents,  and  value,  although  men- 
tioned in  the  bill  of  lading,  to  be  considered  as  unknown  to  the 
master  unless  expressly  recognised  and  agreed  to  the  contrary, 
Simple  subscription  not  to  be  considered  as  such  agreement. 

XVII. 

General  Average  to  be  paid  according  t(j  York  and  Antwerp 

Rules. 

XVIII. 

Freight  if  payable  at  port  of  destination  to  be  paid  imme- 
diately on  delivery  in  cash  without  discount,  and  in  the  currency 
stipulated  in  the  bill  of  lading,  or,  at  consignee's  option,  at  the 
rate  of  exchange  of  bankers'  bills  at  sio'ht  current  on  the  dav  of 
the  ahi2)'s  entry  at  the  custom-house, 

XIX. 

Nothing  contained  in  these  rules  is  to  be  construed  so  as  to 
authorise  an  argument  in  respect  to  anything  not  expressed  in 
these  rules. 


47G  MARITIME   LEGISLATION. 

Herr  Laeisz  then  said  that  he  was  desired,  on  behalf  of  the 
Hamburg  Chamber  of  Commerce,  to  present  the  following  protest, 
and  to  request  that  it  be  entered  on  the  minutes  of  the  conference. 

'  The  delegates  of  the  Hamburg  Chamber  of  Commerce,  in  the 
name  and  on  behalf  of  their  constituents,  beg  to  declare  that,  to 
their  regret,  they  feel  unable  to  recommend  the  general  adoption 
of  the  Eules  of  Affreightment,  the  first  of  which,  as  amended  by 
this  conference,  imposes  responsibilities  upon  the  shipowner  which, 
in  their  opinion,  he  cannot  reasonably  be  expected  to  take  upon 
himself,  thus  rendering  the  rules  unacceptable  for  practical  use.' 

Dr.  Sieveki]\'G  wished,  although  he  had  been  a  member  of  the 
committee  of  reference,  to  express  the  obligations  of  the  con- 
ference to  those  gentlemen  who  had  so  kindly  undertaken  the  task 
of  putting  its  decisions  into  shape.  They  had  spent  a  great  deal 
of  time  in  doing  so  since  the  meeting  of  the  previous  morning. 
He  also  expressed  the  desire  that  the  executive  council  would  do 
their  best  to  distribute  and  give  effect  to  the  decisions  on  this 
question  at  which  the  conference  had  arrived. 

^I.  Engels  thought  that  for  the  council  to  take  such  action 
would  be  improper,  since  the  resolutions  adopted  by  this  conference 
were  totally  opposed  to  those  of  the  Liverpool  conference,  and  the 
council  was  bound  by  the  one  as  much  as  the  other. 

Aliliougli  the  importance  of  these  decisions  could  not 
be  denied,  it  soon,  liowever,  became  apparent  that  they 
^vere  yet  far  iVoin  Icadiiii!'  to  any  practical  result. 

T  now  come  to  the  hiljours  of  another  congress,  Avhose 
duty  it  Avas  to  consider  tlie  subject-matter  of  these  pages ; 
I  mean  tlie  congress  which  tlie  Tkdgian  Government  as- 
sembled at  Antwerp  fiom  September  27  until  October  3, 
]885,  ibi-  tlic  ])iii-pose  of  li-ying  to  obtain  an  agreement  on 
certain  piinciplcs  of  commercial  law.  In  order  to  bring 
together  a  thofonglily  coniix'tent-  assembly  for  the  con- 
sideratioji  of  tJicse  mattci's.  llic  l^oyal  C^ommissioii,  whicli 
til'-  King  of  the  Jielgians  had  instituted  for  the  oi'gaiiisa- 


INTERNATIONAL    LAW   OF  AFFREIGHTMENT.  477 


tion  of  this  international  congress,  liad  not  only  invited 
tlie  different  Governments  to  send  efficient  delegates,  but 
had  likewise  addressed  formal  invitations  to  the  barristers 
of  the  principal  mercantile  cities,  the  iaculties  of  law  of 
the  most  important  continental  universities,  the  principal 
learned  societies,  the  courts  of  commerce,  the  chambers 
of  commerce,  the  boards  of  underwriters,  and  other  equally 
capable  and  interested  bodies. 

A  large  number  of  gentlemen,  thoroughly  conversant 
with  these  subjects,  had  therefore  an  opportunity  of  in- 
vestigating the  merits  of  the  arguments  brought  forward 
in  favour  of  the  different  contentions,  and  I  cannot  do 
better  than  give  the  resolutions,  and  the  conclusions  at 
which  they  arrived  in  their  oAvn  words. 

These  were  as  follows  : — ■ 

The  owners  of  ships  are  civilly  responsible,  to  the  freighters 
and  shippers,  for  the  acts  of  their  captains  and  their  officers  relative 
to  the  cargo,  provided  they  cannot  prove  that  the  damage  was 
caused  by  force  majeure,  by  vice-proper  of  the  merchandise,  or  by 
the  fault  of  the  shipper. 

It  is,  however,  lawful  for  the  parties  to  vary  this  responsibility 
by  special  stipulations,  with  the  following  exceptions : — 

Owners  of  ships  should  be  prohibited  from  relieving  themselves 
in  advance  of  their  responsibility  by  inserting  a  clause  in  the  con- 
tract of  affreightment,  the  bill  of  lading,  or  by  any  other  agree- 
ment : — 

(A).  For  any  acts  of  their  captains  or  their  officers  tending  to 

compromise  the  seaworthiness  of  the  ships. 
(B).  For  any  act  which  would  cause  damage  through  improper 
stowage,  want  of  care,  or  incomplete   delivery  of  the 
goods  confided  to  their  care. 
(C).  For  all  barratry,  all  acts  and  cases  of  negligence  having 

the  appearance  of  gross  fraud. 
The  responsibility  of  shipowners  resulting  from  the  acts  and 


478  MARITIME   LEGISLATION 

eno-acremeuts  of  their  officials  is  limited  to  the  value  of  the  ship 
and  freight. 

They  can  rid  themselves  of  this  responsibility  by  abandoning 
the  ship  and  the  freight  or  their  value  at  the  moment  of  the  com- 
mencement of  suit. 


Soon  after  my  return  from  this  Antwerp  congress  I 
^Yas  requested  by  the  London  Chamber  of  Commerce  to 
join  the  sub-committee,  which,  as  previously  mentioned, 
had  been  appointed  at  the  Cannon  Street  Hotel  meeting 
in  the  previous  March  for  the  purpose  of  considering  this 
subject  in  all  its  bearings,  and  to  make  such  suggestions 
as  might  be  deemed  most  expedient  to  meet  the  exigencies 
of  the  case. 

This  sub-committee  held  repeated  meetings  and 
adopted,  in  the  month  of  December  1885,  the  following 
report : — • 

The  sub-committee  appointed  in  March  1885  to  consider  the 
best  means  of  bringing  into  general  use  a  reasonable  and  workable 
form  of  bill  of  lading  have  given  their  careful  attention  to  this 
difiicult  subject,  and  now  beg  to  report  to  the  general  committee 
the  leading  conclusions  at  which  tliey  have  arrived. 

They  speedily  resolved  that  any  attempt  to  draft  in  concert 
with  the  representatives  of  the  shipowners  a  model  bill  of  lading 
would  prove  useless,  and  should  not  be  made.  This  endeavour 
liad  b(.-en  made  some  years  previously  by  the  joint  committees  of 
merchants  and  shipowners  who  drafted  the  Eastern  Trade  Bill  of 
bading,  a  form  which  met  with  very  general  acceptance  at  the  time, 
and  was  taken  as  the  model  for  the  Australian  and  other  bills  of 
lading  subsequently  introduced.  Several  important  shipowners 
and  companies,  however,  fnnw  (li<-  first  declined  to  use  the  Eastern 
Tradr'  form,  and  othfrs  succcssfiillv  iiitrnducc'd   varialions  from  it, 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  -J7'.t 

so  that  in  a  few  years  there  was  nearly  as  niucli  diversity  in  the 
forms  of  bills  of  lading  in  this  trade  as  in  the  American  or  other 
trades  where  the  shipowners'  forms  have  long  been  felt  as  oppres- 
sive. The  sub-committee  are  satisfied  that  any  form  now  agreed 
upon  would  in  like  manner  be  departed  from  by  the  managers  of 
steamship  lines,  and  that  no  durable  reform  could  possibly  be  con- 
structed on  this  basis. 

The  sub-committee  have  consequently  resolved,  that  in  their 
view  the  object  aimed  at  can  only  be  attained  by  parliamentary 
legislation  ;  and  their  efforts  have  been  mainly  directed  to  drafting 
the  requisite  Bill  in  such  form  as  might  prove  a  proper  protection 
to  the  shipper,  and  to  the  holder  of  the  bill  of  lading  for  value, 
while  not  unfair  to  the  shipowner. 

The  Act  introduced  into  the  American  Congress  for  regulating 
bills  of  lading  (but  which  has  not  yet  been  effectively  considered 
there)  has  been  before  the  sub-committee,  as  have  also  the  Ham- 
burg rules  on  bills  of  lading  lately  adopted  at  an  international 
conference  for  the  amendment  and  assimilation  of  commercial  law. 
Both  have  been  found  of  service ;  but  the  American  draft  is  con- 
sidered more  stringent  than  would  be  likely  to  pass  our  House  of 
Commons,  and  it  has  consequently  had  to  be  extensively  modified. 

The  sub-committee  found  much  difficulty  in  drafting  a  form  of 
Bill  which  would  prove  workable  from  a  legal  point  of  view  ;  but 
latterly,  by  the  kindness  of  the  council  of  the  Chamber,  they  have 
had  the  valuable  assistance  of  Mr.  J.  Macdonell,  the  standing 
counsel  to  the  Chamber,  placed  at  their  disposal,  the  result  being 
that  with  his  aid  a  form  of  bill  has  been  drafted,  which  is  now 
submitted  to  the  general  committee  for  their  approval. 

The  committee  will  observe  that  the  Bill  is  a  short  one,  as  it 
merely  seeks  to  lay  down  certain  legal  principles  applicable  to  the 
case,  from  which  the  shipowners  will  be  unable  to  exempt  them- 
selves by  any  clauses  which  they  may  desire  to  embody  in  their 
bills  of  lading.  Upon  the  question  of  the  general  legal  principles 
involved,  the  sub-committee  append  hereto  a  letter  dated  ]\Iarch 
23,  1885,  from  Mr.  Henry  Attlee,  solicitor,  who  has  given  much 
attention  to  this  question  from  the  merchants'  point  of  view.  In 
the  draft  Bill  they  have  endeavoured  to  give  effect  to  his  contention 


4^0  MARITIME   LEGISLATION. 

that  the  shipowner  should  be  relieved  from  the  insurance  liability 
■which,  in  law,  at  present  attaches  to  him  as  a  common  carrier. 

The  Bill  does  not  propose  to  recommend  or  enforce  any  par- 
ticular form  of  bill  of  lading.  The  sub-committee  recognise  that 
different  trades  require  different  forms  according  to  their  special 
circumstances.  They  think,  however,  that  the  forms  employed 
should  be  as  simple  and  short  as  practicable,  and  that,  without 
specifically  adopting  it,  Mr.  Charles  Stubbs's  published  form  may 
very  usefully  be  taken  as  a  model  from  which  to  draft  the  various 
bills  of  lading  required  for  the  various  conditions  of  distinct  trades. 
The  essential  point  to  be  gained,  and  the  consequent  protection  for 
the  owner  of  the  goods  shipped,  is  that  no  condition  on  a  bill  of 
lading  can  be  enforced  which  is  at  variance  with  the  principles  laid 
down  in  the  Bill. 

One  object  which  has  to  be  sedulously  kept  in  view  is  that  the 
bill  of  lading  must  itself  be  a  complete  receipt  for  the  goods 
shipped,  and  a  complete  security  that  they  will  be  delivered  in 
accordance  Avith  its  terms,  saving  only  through  such  losses  as  are 
covered  by  an  ordinary  policy  of  insurance.  This  accomplished,  the 
bill  of  lading  becomes  a  security  on  which  money  may  be  advanced 
witli  unhesitating  confidence. 

It  may  be  thought  that  the  absence  of  any  recognised  form  of 
bill  of  lading  will  tend  to  promote  litigation,  each  case  of  dispute 
having  to  be  treated  on  its  own  special  merits.  The  sub-committee 
have  had  this  question  under  view,  and  are  of  opinion  that  it  is 
impossible  materially  to  stop  litigation,  considering  the  infinite 
variety  of  circumstances  with  which  commercial  transactions  have 
to  deal.  They  feel  satisfied,  however,  that  w^ith  such  a  law  in 
operation  the  merchant  may  encounter  litigation  with  a  sense  of 
security  which  he  could  never  have  felt  under  the  previous  indefinite 
and  uncertain  system. 

In  explanation  of  the  delay  that  has  taken  place  in  presenting 
this  report,  it  may  be  observed  that  the  sub-committee  very  early 
came  to  the  conclusion  that  it  was  quite  hopeless  to  do  anything 
in  the  way  of  legislation  during  the  Parliamentary  Session  of  1885. 
Tlu-y  trust,  however,  that  the  general  committee  will  so  deal  with 
tlie  matter  tliat  ;i  Bill,  nimiiig  at  settling  a  prnc(ical)lo  system  for 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  481 

tbo  future,  may  be  presented  to  the  new  Parliament  at  the  earliest 
possible  period  in  188G. 

J.  Macandrew,  Chairman  (Matheson  &  Co.). 

C.  ViC'iOR  Benecke  (Benecke,  Soucliay,  &  Co.). 

H.  Reixiiold  (Reinliold  &  Co.). 

J.  C-  PiTCAiKN  (J.  G.  Pitcairn  &  Sons). 

A.  J.  Malcolm  (J.  McEwan  &  Co.). 

E.  E.  Wendt,  D.C.L. 

Members  of  the  Suh- Committee. 

I  concur  in  the  report,  but  I  strongly  urge  that  a  clause  should 
bo  introduced  into  the  Act,  providing  for  the  exemption  of  the 
shipowner  from  liability  in  respect  to  any  error  in  the  actual  navi- 
gation, even  when  occasioned  by  negligence,  default,  error  in 
judgment  of  the  pilot,  master,  mariners,  or  other  servants  of  the 
shipowner,  not  resulting,  however,  in  any  case,  from  want  of  due 
diligence  by  the  owners  of  the  ship,  or  any  of  them. 

J.  G.  PrrcAiKN  (J.  G.  Pitcairn  &  Sons), 

Member  of  the  Sub-Committee. 

COrY    OF   LETTER   FROM   MR.    HENRY    ATTLEE. 

10  Billiter  Square,  London,  E.G. :  March  23,  1885. 

Dear  Sir, — It  seems  to  me  that  what  is  wanted  is  some  arrange- 
ment which  would  place  the  shipowner  and  the  merchant  in  an 
equitable  position  vis  a  vis  each  other. 

In  my  opinion  it  is  not  a  question  of  settling  the  precise  terras 
of  a  bill  of  lading,  for  it  is  impossible  by  the  introduction  or 
elimination  of  particular  words  varying  the  liability  of  parties  in 
a  contract  to  meet  the  difficulty  ;  but  that  it  is  to  be  met  by  an 
alteration  in  the  principle  of  the  law  itself  regulating  the  rights 
of  shipowner  and  merchant.  As  the  law  at  present  stands,  the 
shipowner  carrying  goods  is  a  common  carrier  and,  therefore,  an 
insurer,  that  is  apart  from  any  special  stipulations  introduced  into 
any  contract  which  may  limit  his  liability  ;  he  undertakes  to  carry 
safely  and  securely  against  all  accidents  and  risks  whatsoever. 
Hence  it  is  that  the  shipowners  have  from  time  to  time  sought  to  limit 
this  general  liability  by  the  introduction  of  a])t  words  to  exclude 

I  I 


482  MARITIME   LEGISLATION. 

the  varied  risks  which  experience  has  taught  them  arise  in  the 
course  of  the  carria"-e,  and  at  hist  these  exceptions  have  become  so 
numerous  that  they  have  to  be  embodied  in  diamond  print,  and 
make  a  long  document  difficult  of  construction  and  containing 
contradictions,  and  have  become  in  many  cases  unfair  in  their 
operation. 

Now,  as  I  understand  it,  the  merchants  do  not  object  to  reason- 
able limitations  of  the  common-law  liability  of  a  carrier ;  that  is  to 
say,  they  no  longer  wish  that  a  carrier  by  water  should  undertake  to 
carry  against  all  risks,  and  I  think  that  the  case  would  be  better 
met  by  a  short  Act  of  Parliament  declaring  that  in  future  a  ship- 
owner or  carrier  by  water  should  not  be  liable  as  an  insurer,  but 
that  his  liability  should  be  limited  to  any  loss  occasioned  by  the 
want  of  ordinary  care  on  his  part,  and  that  in  case  of  a  loss  it  should 
lie  on  him  to  acquit  himself  by  showing  that  he  was  not  in  fault ;  in 
other  words,  his  liability  would  be  assimilated  to  other  custodians 
of  goods,  such  as  warehousemen,  &c. 

To  effect  this  a  short  Act  of  Parliament  would  be  required,  and 
the  same  Act  might  declare  that  it  should  not  be  lawful  for  the 
shipowner  by  express  stipulation  to  exclude  this  general  liability 
thus  limited  to  loss  occasioned  by  the  want  of  ordinary  care  on  his 
part.  It  would  be  easy  to  add  words  of  definition  which  would 
relieve  the  shipowner  from  liability  for  the  errors  of  judgment  of 
captains  or  officers,  or  for  their  negligence,  except  in  cases  where 
the  shipowner  had  knowledge  of  the  officer's  unfitness  for  his  duties 
from  proved  want  of  ability,  dishonesty,  or  other  defect  of  character, 
in  which  latter  alternative  he  should  be  liable  if  the  knowledge  were 
such  a.s  would  satisfy  a  prudent  man  of  the  officer's  unfitness. 

The  Act  would  also  provide  that  the  shipowner  or  ship  should 
be  held  responsible  to  the  bond-fide  holder  for  value  of  a  bill  of 
lading  for  all  goods  signed  for  by  the  captain,  or  other  duly  authorised 
agent  at  the  port  of  loading,  whether  such  goods  were  or  were  not 
put  on  board,  or  that  it  should  be  made  imperative  upon  the  ship 
to  declare  at  the  port  of  loading  the  agent  who  should  be  authorised 
to  sign  bills  fjf  lading,  if  any,  lu'voud  the  captain,  by  whose  signa- 
luro  slii[)ovvncrs  should  be  bound,  failing  which  the  captain  should 
Ih'  li-<'allv  licld  <o  hind  llic  owner.     It  seems  to  mc  it  would  bo 


INTERNATIONAL   LAW   OF   AFFREIGHTxMENT.  483 

preferable  that  the  shipowuer,  or  the  ship  itself,  be  held  responsible 
in  damages  rather  than  that  penal  consequences  of  a  criminal 
nature  should  be  imposed  upon  the  captain  or  others,  signing  bills 
of  lading  for  goods  not  actually  on  board. — I  am,  dear  Sir, 

Yours  faithfully, 
(Signed)  IIenky  Attlee. 

An  Act  to  Regulate  and  Define  the  Duties  and  Liabilities 

OF  Shipowners. 

Whereas  it  is  expedient  to  amend  the  law  affecting  the  duties 
and  liabilities  of  shipowners, 

Be  it  enacted  by  the  Queen's  most  excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal, 
and  Commons,  in  this  present  Parliament  assembled,  and  by  the 
authority  of  the  same,  as  follows  : — 

I.  This  Act  may  be  cited  as  the  Bills  of  Lading  Act,  188G. 

IL  This  Act  shall  come  into  effect  on  ,  188G, 

III.  Li  this  Act,  unless  the  context  otherwise  requires, 

'  Shipowners  '  includes  any  corporate  body  owning  a  ship,  and 
any  managing  owner  ; 

'  Ship  '  includes  every  vessel,  whether  navigated  or  propelled 
by  steam,  sails,  or  oars,  and  every  lighter,  barge,  or  craft  of  any 
kind ; 

'  United  Kingdom '  means  Great  Britain  and  Ireland ; 

The  expression  '  owner  of  goods '  includes  every  person  who  is 
for  the  time  being  entitled  either  as  owner,  or  agent  for  the  owner, 
to  the  possession  of  goods,  subject  in  the  case  of  a  lien,  if  any,  to 
such  lien ; 

'  Goodj '  include  every  description  of  wares  and  merchandise  ; 

'  Master '  includes  every  person  (except  a  pilot)  having  command 
or  charge  of  a  ship  within  the  meaning  of  this  Act ; 

'Bill  of  lading'  includes  every  mate's  receii:>t,  or  other  docu- 
ment of  the  nature  of  a  receipt  or  acknowledgment,  for  goods 
temporarily  granted  until  a  bill  of  lading  is  issued. 

IV.  This  Act  shall  apply  to  all  ships  carrying  goods  from  any 
port  or  place  in  the  United  Kingdom,  and  all  .ships  carrying  goods 
to  any  port  or  place  in  the  United  Kingdom  to  be  delivered  there. 

1  I  2 


484  MARITIME   LEGISLATION. 

V.  (1.)  No  shipowner  shall  be  liable  to  the  owner,  consignee 
of  goods,  or  the  indorsee  of  a  bill  of  lading,  for  injury  or  damage 
to,  or  loss  of,  or  in  respect  of,  goods  to  be  carried  and  delivered, 
except  for  injury,  damage  or  loss,  in  receiving,  carrying,  or  de- 
liverino-  them,  caused  by  the  want  of  ordinary  and  reasonable  care 
on  the  part  of  the  shipowner,  master,  crew,  servant,  or  agent  of 
such  shipowner. 

(2.)  Every  shipowner  shall  be  liable  to  the  owner,  consignee 
of  goods,  or  the  indorsee  of  a  bill  of  lading,  for  injury,  damage,  or 
loss,  as  aforesaid,  in  receiving,  carrying,  or  delivering,  if  caused  by 
the  want  of  ordinary  and  reasonable  care  on  the  part  of  the  ship- 
owner, master,  crew,  servant,  or  agent  of  such  shipowner ;  and  the 
onus  of  proving  that  such  injury,  damage  or  loss,  as  aforesaid,  was 
not  occasioned  by  want  of  such  ordinary  and  reasonable  care,  shall 
be  on  the  shipowner. 

(3.)  Every  shipowner  shall  be  so  liable  while  the  goods  to  be 
carried  and  delivered  are  temporarily  deposited  before  delivery  to 
the  owner,  consignee,  or  indorsee,  on  any  quay  or  wharf,  or  in  any 
warehouse  or  other  premises,  in  charge  or  under  control  of  the 
shipowner  or  his  agent. 

(4.)  Any  provision  or  exception  in  any  bill  of  lading  or  any 
agi'eement  to  the  contrary  of  this  section,  shall  be  null  and  void. 

VI.  (1.)  Any  provision  or  exception  in  any  bill  of  lading,  or 
any  agreement  purporting  to  relieve  or  exonerate  in  any  way  any 
shipowner  from  any  duty  to  properly  equip,  man,  provision,  and 
fit  out  any  ship,  and  to  render  it  seaworthy,  or  from  any  implied 
warranty  of  seaworthiness  in  a  contract  of  affreightment,  shall  be 
null  and  void. 

(2.)  The  onus  of  proving  that  any  injury,  or  damage  to,  or  loss 
of  or  in  respect  of,  goods,  to  be  carried  and  delivered  aforesaid, 
was  not  occasioned  by  a  breach  of  such  duty  on  the  part  of  such 
shipowner,  master,  crow,  servant,  or  agent,  in  properly  equipping, 
manning,  provisioning,  fitting  out,  and  rendering  seaworthy  any 
ship,  or  by  a  breach  of  such  warranty  of  seaworthiness,  shall,  any 
provision,  exception,  or  agreement  to  the  contrary  notwithstanding, 
be  on  the  shipowner. 

('■').)   No  sliipowucr  shall   bo  liable   for  iiijuiy,   damage,  or  loss 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  485 

as  nforesaid,  caused  by,  or  arising  from,  any  latent  defects  in  the 
hull,  machinery,  tackle,  equipment,  or  outfit  of  a  ship  which  could 
not  have  been  discovered  by  reasonable  care  or  skill  on  the  part  of 
the  shipowner,  master,  crew,  servant,  or  agent. 

VII.  In  every  bill  of  lading  issued  in  fulfilment  of  a  mate's 
receipt,  or  of  other  document  of  the  nature  of  a  receipt,  the  exact 
voyage  which  is  intended  to  be  made,  and  the  ports  at  which  it  is 
intended  that  the  ship  shall  touch,  shall  be  clearly  specified  or 
described ;  and  the  master  or  agent  of  the  shipowner  shall  sign 
and  deliver  to  the  shipper  of  the  goods,  within  a  reasonable  time, 
such  a  bill  of  lading  for  goods  received  in  conformity  with  the 
mate's  receipt,  or  other  document  of  the  nature  of  a  receipt. 

VIII.  If  goods  are  discharged  at  any  port  other  than  the  port 
specified  in  the  bill  of  lading  as  their  destination,  or  carried  to  any 
port  beyond  such  destination,  they  shall,  until  delivered  thereat, 
be  at  the  risk  of  the  shipowner ;  and  he  shall  be  liable,  any  pro- 
vision or  exception  in  a  bill  of  lading,  or  any  agreement  to  the 
contrary  notwithstanding,  for  injury  or  damage  to,  or  loss  of,  or  in 
respect  of,  such  goods,  caused  by  their  being  so  discharged  or  not 
delivered  at  the  specified  poi't.  Provided  always,  that  he  shall  not 
be  so  liable  for  such  injury,  damage,  or  loss  by  causes  beyond  the 
control  of  the  shipowner,  master,  crew,  servant,  or  agent. 

IX.  Every  bill  of  lading  in  the  hands  of  a  hond-ficle  holder, 
representing  goods  to  be  shipped  on  board  a  ship,  and  signed  by 
the  master  or  agent  of  the  shipowner,  shall  be  conclusive  evidence 
of  such  shipment  as  against  the  shipowner,  as  well  as  against  the 
master  or  agent  signing  the  same,  notwithstanding  that  such 
goods,  or  some  part  thereof,  may  not  have  been  so  shipped  or 
received.  But  nothing  in  this  Act  shall  affect  a  shipowner's, 
master's,  or  agent's  rights  against  the  shipper  or  owner  of  the 
goods,  or  other  person,  in  consequence  or  by  reason  of  whose 
fraud  or  default  such  goods  were  not  shipped  or  received,  or  such 
representation  was  made. 

X.  Nothing  in  this  Act  shall  make  a  shipowner  liable  for 
injury  or  damnge  to,  or  loss  of,  or  in  respect  of,  goods,  caused  by 
the  act  of  God  or  the  Queen's  enemies,  or  affect  s.  503  of  1 7  &  1 8 
Vict.  c.  107. 


4^6  MARITIME   LEGISLATION. 

XI.  Sec.  3  of  18  &  19  Vict.  c.  Ill,  is  hereby  repealed,  except 
so  far  as  regards  bills  of  lading  signed  before  this  Act  came  into 
force. 

This  report  was  adopted  and  coufirined  by  the  general 
connnittee  of  the  London  Chamber  of  Connnerce,  but  was 
not  followed  up  by  any  action  of  that  body,  as  appears 
from  the  following  report  adopted  on  April  5,  1886  : — 

The  special  committee  of  the  Chamber  of  Commerce  appointed 
to  consider  the  question  of  the  terms  of  existing  bills  of  lading 
and  the  best  means  of  amending  them  upon  an  equitable  basis  had 
regarded  their  functions  as  closed  with  the  preparation  and  presen- 
tation of  their  Report  dated  in  December  last.  They  have,  how- 
ever, reassembled  in  consequence  of  the  wish  expressed  by  the 
council  of  the  Chamber  in  their  resolution  of  January  14,  that 
they  should  communicate  with  the  representatives  of  the  shipowners 
so  as  to  obtain  their  views  on  the  legislation  proposed  by  the 
committee. 

The  committee  accordingly  intimated  to  the  General  Shipowners' 
Society,  to  the  Chamber  of  Shipping,  and  to  the  Steam  Shipowners' 
Association  that  they  were  ready  to  meet  any  representatives  whom 
these  bodies  might  appoint  for  the  purpose  of  discussing  the  Bill 
drafted  by  the  committee,  and  seeing  whether  an  agreement  could 
be  arrived  at  as  to  its  terms.  The  answers  received  from  two  of 
these  associations  are  appended  hereto.  No  answer  has  been  re- 
ceived from  the  Steam  Shipowners'  Association.  It  will  be  seen 
that  the  invitation  to  discuss  the  Bill  is  ignored  by  the  one  body 
and  declined  by  the  other,  while  both  advance  the  old  expedient 
tliaf,  t  lir  merchants  and  sliipowncrs  engaged  in  any  particular  branch 
of  trade  sliould  meet  together  and  arrange  a  form  of  bill  of  lading 
which  would  prove  mutually  acceptable. 

Tiu^  committee  have  already  r('i)orted  to  the  council  that  an 

agreed    lull   <>f'   lading  is  quite   useless,  because    no    shipowner  is 

1)1)1111(1  hy  it,  and   flic  great  steam  companies,  as  a  rule,  will  not 

iiitiit;iiii  swell  negotiations,  l)nt  insist  on  using  their  own  forms. 

'rii'-\  also  reported  that  the  most  ])romisingatt('mi)t  to  establish 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  487 

snch  a  bill  of  lading  by  the  mutually  agreed  upon  form  styled  '  the 
Eastern  Trade  P>ill  of  Lading'  had  resulted  in  complete  failure,  as 
many  important  lines  never  adopted  it,  while  other  shipowner?, 
after  using  it  for  a  time,  introduced  variations  or  additional  clauses 
to  suit  their  own  purposes,  which  clauses  are  complained  of  by 
merchants  as  oppressive  and  unfair. 

The  committee  therefore  now  finally  report  that  there  is  no 
expectation  whatever  on  their  part  of  arriving  at  a  preliminary 
understanding  with  the  shipowners  on  the  legislative  measures 
which  they  propose.  Under  these  circumstances  they  recommend 
that  the  whole  question  be  submitted  to  the  decision  of  Parliament 
by  the  council  pressing  forward  at  the  earliest  possible  opportunity 
in  the  House  of  Commons  the  Bill  already  recommended  by  them 
as  being  a  measure  of  relief  urgently  required  by  the  numerous 
bankers,  merchants  and  shippers  who  ai-e  injuriously  affected  by 
the  inequitable  conditions  of  the  majority  of  the  bills  of  lading 
now  in  use. 

As  previously  stated,  tlie  Eoyal  Commission  on  Loss  of 
Life  at  Sea  was  sitting  at  this  time,  and  the  council  of  the 
London  Chamber  of  Commerce  accordingly  resolved  that 
any  further  action  on  their  part  should  be  deferred  till  this 
commission  had  issued  its  report. 

Soon  after,  in  the  month  of  May  of  the  same  year,  it 
was  puldicly  announced  that  the  Chambers  of  Connnerce 
of  Hamburg  and  Bremen,  as  well  as  the  Associations  of 
Shipowners  at  these  ports,  had  agreed  upon  the  adoption 
of  a  uniform  bill  of  lading  for  steamships,  and  issued  the 
following : — 

Statement  respecting  its  Introduction. 

As  the  deliberations  on  the  above  subject  during  the  conference 
of  the  Association  for  the  Reform  and  Codification  of  the  Laws  of 
Nations  held  in  August  last  year  at  Hamburg,  and  of  the  Congres 
International  de  droit  Commercial,  which  met  soon  after  at  Ant- 
werp, did  not  lead  to  any  practical  results,  owing  to  the  proposed 


488  MAraXIME   LEGISLATION. 

resolutions  being  partially  unacceptable  to  shipowners,  the  under- 
signed Chambers  of  Commerce  and  Associations  of  Shipowners 
entered  into  negotiations  together  in  order  to  draft  a  bill  of  lading 
for  steamers  doing  justice  to  all  parties  interested,  and  to  arrange, 
if  possible,  its  universal  adoption.  The  result  of  these  negotiations 
is  the  following  model  bill  of  lading. 

It  adopts  the  principle  that  the  shipowner  shall  be  responsible 
for  seaworthiness,  proper  equipment  and  outfit  of  the  vessel,  as 
well  as  for  faults  and  negligence  of  the  crew  respecting  proper 
stowage,  care,  treatment,  and  delivery  of  the  cargo  (Rule  I.),  thus 
doing  justice  to  the  shippers,  who,  owing  to  the  shipowner  not 
being  responsible  for  the  frequent,  although  generally  small,  losses 
caused  thereby,  which  are  often  not  recoverable  from  underwriters, 
had  just  cause  of  complaint.  On  the  other  hand,  owners  ought  to 
aoree  to  these  clauses,  as  at  present  many  of  the  best  companies 
have  acknowledged  a  moral  liability  in  this  sense  and  made  com- 
pensation for  claims  of  the  nature  described,  even  if  they  were  not 
liable  according  to  the  wording  of  their  bills  of  lading. 

The  owner,  however,  is  not  to  be  responsible  for  faults  and 
neo-lio-ence  of  the  crew  arising  from  the  navigation  of  the  vessel 
(Rule  II.).  This  clause,  of  vital  importance  to  the  owner,  does  not 
prejudice  the  shippers,  as,  with  trifling  exceptions  they  are  always 
insured  against  such  risks,  nor  have  the  underwriters  any  cause  to 
com])lain,  as  by  accepting  the  premium  they  obtain  an  equivalent 
for  such  risk,  which  many  underwriters  accept  without  charging  a 
higher  premium. 

This  settlement  of  the  owners'  liability  for  the  faults  of  their 
crew  agrees  in  principle  with  all  the  bills  of  lading  which  have 
been  accepted  lately  after  agreement  between  shippers  and  owners 
(viz.  tiie  New  York  Produce  Exchange,  as  approved  for  adoption 
by  the  Liverpool  Steamship  Owners'  Association,  the  General 
Produce,  Mediterranean,  Black  Sea,  and  Baltic  Steamship  bills  of 
lading  and  others),  a  proof  that  it  is  in  accordance  with  the  sense 
of  justice  of  the  parties  coucriu'd. 

This  cardinal  ]K)int  in  the  drall  is  followed  by  a  series  of  other 
iiiil)ortant  clauses  respecting  the  contract  of  affreightment  for  which 
\\\i-  n-solutious  of  the  Liverpool  and  Hamburg  conference  of  the 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  489 

Association  for  the  Reform  and  Codification  of  the  Law  of  Nations 
have  given  a  valuable  starting-point. 

With  resi)ect  to  the  codification,  it  has  been  agreed  to  follow 
the  unanimous  decision  of  the  Hamburg  conference  of  the  Asso- 
ciation to  arrange  tlie  bill  of  lading  clauses  in  general  rules  similar 
to  the  York  and  Antwerp  General  Average  Rules.  It  appears,  how- 
ever, advisable  to  have  the  rules  printed  on  the  back  of  the  bill  of 
lading,  at  any  rate  until  they  are  generally  known. 

Finally,  in  order  to  meet  the  existing  and  just  requirements  of 
some  trades  and  shipowners,  to  add  to  the  general  rules  special 
clauses,  i.e.  to  alter  some  of  their  conditions,  space  has  bten  reserved 
on  the  front  side  of  the  bill  of  lading  for  such  additions  and  altera- 
tions, but  with  regard  to  the  first  principal  rule  respecting  the 
responsibility  of  the  shipowner,  it  is  expressed  that  no  alterations 
be  allowed. 

The  undersigned  believe  that  in  the  bill  of  lading  drafted  by 
them  for  the  rules  of  a  contract  of  affreightment  they  have  found 
a  suitable  model  acknowledged  by  the  unanimous  opinion  of  the 
parties  every  day  more  than  just  and  equitable,  and  would  strongly 
recommend  its  adojDtion  to  all  shipowners. 

The  Chamber  of  Commerce  of  Bremen.     Luis  Ed.  Meyer, 
Cluiirman. 

The  Association  of  Owners  of  the  Lower  Weser.  H.  H,  Meier, 
Chairman. 

The  Chamber  of  Commerce  of  Hamburg.    Robert  Mestern, 
Chairman. 

The  Association  of  Hamburg  Owners.    Carl  Laeisz,  Chairman. 

Hamburg  and  Bremen  :  Maj'  1886. 

Form  of  Bill  of  Lading. 

Shipped,  in  apparent  good  order  and  condition,  by  M.  , 

on  board  the    steamship  Captain  from 

,  bound  to  ,  being  marked  and  numbered 

as  per  margin,  to  be  delivered  at  unto  ]\I. 

or  order  against  payment  of  freight  at  the  rate  of 
and  charges  as  per  margin.     Subject  to  the  general  rules  on  the 


490  MARITIME   LEGISLATION. 

other  side  as  far  as  hereafter,  there  are  no  alterations  or  additions 
to  Rules  II.  to  XVII. 

In  witness  whereof,  the  master  of  the   said   ship  has  signed 
bills  of  lading  of  the  same  tenor  and  date,  besides  the 
captain's  copy  which  is  marked  as  such,  one  of  which  being  ac- 
complished the  others  to  stand  void. 
Dated  at 

(Signed) 

General  Rules  for  Steamship  Bills  of  Lading  recommended 

TO    BE    adopted  BY  THE    CHAMBERS  OF    COMMERCE    OF    HAMBURG 

AND  Bremen. 

Ixule  I. — -The  shipowner  is  responsible  for  the  proper  fitting 
out  of  the  vessel  and  for  its  being  equipped,  manned,  and  pro- 
visioned, and  in  a  seaworthy  condition,  capable  to  undertake  the 
intended  vo^'age.  Also  for  errors  or  negligence  of  his  employes 
respecting  proper  stowage,  care,  treatment,  and  delivery  of  the  cargo. 

All  agreements  and  clauses  to  the  contrary  to  be  null  and  void 
and  of  no  legally  binding  force. 

linh  II. — The  shipowner  is  not  responsible  for  the  dangers  of 
the  seas,  fire,  pirates,  robbers,  barratry  (theft  excepted),  arrest  and 
restraint  of  Governments,  nor  for  damages  and  losses  by  collision, 
stranding,  and  all  other  casualties  of  navigation,  even  if  the 
damages  or  losses  so  caused  can  be  proved  to  have  been  caused  by 
an  illegal  act,  fault,  negligence,  or  error  of  the  pilot,  captain,  crew, 
or  any  other  servant  of  the  shipowner,  nor  for  damages  or  losses 
by  explosion,  bursting  of  steam  boilers  or  pipes,  breakage  of 
shafts,  or  for  any  latent  defect  in  hull  or  machinery  (not  caused  by 
uns'-aworthiness  or  want  of  due  diligence  by  the  owner  or  ship's 
husbandj,  nor  for  decay,  putrefaction,  rats,  or  worms,  rust,  sweat, 
decomposition,  shrinkage,  leakage,  breakage,  country  damage,  or 
any  damage  arising  from  the  natural  condition  of  the  goods 
shippf'd,  or  such  defective  packing  as  could  not  be  noticed  exter- 
iKilly,  ov  finally  their  contact  with  or  damage  caused  by  the  smell 
of  other  goods,  nor  for  incorrect  or  faulty  address,  nor  for  errors 
caused  by  the  otil iteration  of  marks,  numbers,  addresses,  or 
(h'S^riptioiis  of  the  goods  shipped. 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  49i 

Rule  in. — Vessel  to  be  at  liberty  to  call  at  any  intermodiate 
ports  (whether  also  of  ports  not  mentioned  in  the  bill  of  lading  is 
subject  to  special  contract),  to  sail  without  pilots,  to  tow  and  assist 
vessels  in  distress,  and  to  deviate  for  the  purpose  of  saving  life  or 
property,  also  at  liberty,  in  case  the  ship  shall  put  into  a  port  of 
refuge  for  repairs,  to  transliip  the  goods  to  their  destination  by  any 
other  vessel,  and  at  liberty  to  convey  goods  at  shippers'  risk  in 
lighters  to  and  from  the  ship. 

Hide  IV. — Quality-marks,  if  any,  to  be  of  the  same  size  as 
and  contiguous  to  the  leading  marks.  If  inserted  in  the  shipping 
notes  accepted  by  the  mate,  the  master  is  bound  to  sign  bills  of 
lading  conformable  thereto. 

Rule  V. — Ship  not  accountable  for  gold,  silver,  bullion,  specie, 
documents,  jewellery,  works  of  art,  or  other  articles  exceeding 
M.  2,000  per  package,  unless  bills  of  lading  are  signed  therefoi* 
with  the  value  therein  expressed,  and  a  special  agreement  to  be 
made. 

Rule  VI. — Shippers  are  accountable  for  any  and  every  loss 
or  damage  to  ship  or  cargo  caused  by  inflammable,  explosive,  or 
dangerous  goods,  if  such  goods  are  shipped  without  special  agree- 
ment and  without  full  disclosure  of  their  nature,  whether  such 
shipper  shall  have  been  aware  of  it  or  not,  and  whether  such 
shipper  be  principal  or  agent.  Such  goods  may  be  thrown  over- 
board or  destroyed  by  the  master  or  owners  of  the  shij)  at  any 
time  without  compensation. 

Rule  VII. — Shipper  and  consignee  to  be  responsible  for  all 
fines  or  damages  which  the  ship  or  cargo  may  incur  or  suiFer  by 
reason  of  incorrect  or  insufficient  marking  of  packages  or  descrip- 
tion of  their  w'eights  or  contents. 

Rule  VIII. — If  the  owner  has  given  a  receipt  for  goods  still 
lying  on  the  quay  or  in  lighters,  he  is  only  responsible  in  so  far  as 
if  they  had  been  already  taken  on  board. 

Rule  IX. — Goods  once  shipped  can  only  be  taken  away  by  the 
shipper  against  payment  of  full  freight  and  compensation  for  any 
damages  sustained  by  the  shipowners  through  such  taking  away. 

Rule  X. — In  case  the  ship  sliall  be  prevented  from  reaching 
her  destination  by  quarantine,  blockade,  ice,  or  the  hostile  act  of 


492  MARITIME   LEGISLATION. 

any  Power,  the  master  or  owners  may  discharge  the  goods  into 
any  depot  or  hizaretto,  or  at  a  convenient  port  when  his  duties  are 
fulfilled.  The  sliippers  and  consignees  to  be  responsible  for  all 
expenses  thereby  incurred  upon  the  goods. 

Bide  XI. — For  cargo  damaged  or  reduced  by  leakage  full  freight 
to  be  paid.  No  freight  to  be  paid  for  increase  in  weight  by  sea 
damage. 

Bule  XII. — If  the  goods  be  not  taken  by  the  consignees  without 
delay  or  within  such  time  as  is  provided  by  the  regulations  of  the 
port  of  discharge,  they  may  be  lauded  or  discharged  into  hulks  or 
lighters  by  the  master  at  the  expense  and  risk  of  their  owners. 

Rule  XIII. — Ship  to  have  a  lien  on  all  goods  for  payment  of 
freight  and  charges,  including  dead  freight,  demurrage,  forwarding 
charges,  and  for  carrying  to  port  of  shipment,  and  the  fines,  dam- 
ages, and  expenses  mentioned  in  Rules  VII,  and  X.  and  for  General 
Average  claims.  Ship  also  to  be  entitled  to  recover  from  the 
shipper  the  difference  between  the  amount  of  freight  stipulated  in 
the  bill  of  lading  and  the  proceeds  of  the  goods,  should  the  freight 
not  be  paid  otherwise. 

Rule  XIV. — In  the  event  of  claims  for  short  delivery  when  the 
ship  reaches  her  destination,  the  price  to  be  the  market  price  at  the 
port  of  destination,  on  the  day  of  the  ship's  entry  at  the  custom- 
house, less  freight  and  charges  saved. 

Rale  XV. — Weight,  measure,  quality,  contents,  and  value,  al- 
tliou^h  mentioned  in  the  bill  of  lading,  to  be  considered  as  unknown 
to  the  master,  unless  expressly  recognised  and  agreed  to  the  con- 
trary. Signing  the  bill  of  lading  is  not  to  be  considered  as  such 
agreement. 

Rule  XVI. — General  Average  to  be  paid  according  to  York  and 
Antwerp  Rules,  consignees  of  goads  liable  to  contribute  to  General 
Average  to  sign  an  average  agreement  declaring  values,  or  to  give 
sufficient  secmity,  at  the  captain's  option. 

Rule  XVII. — Freight  and  charges,  if  payable  at  port  of  desti- 
nation, to  be  paid  immediately  on  delivery  in  cash,  without  discount 
and  in  the  currency  stipulated  in  the  bill  of  lading,  or  at  con- 
signee's option,  at  the  rate  of  exchange,  of  bankers'  bills  at  sight 
cnrn-nt  on  t  Ik-  <l;iv  "f  t  In-  ^liip's  cut  i\-  at  tlie  custom-house.      Frcitilit 


INTERNATIONAL   LAW    OF   AFFREIGHTMENT.  493 

paid  iu  advance  cannot  be  refunded,  even  if  vessel  and  cargo  are 
lost. 

This  was  tlie  state  of  affairs  when  the  council  of  the 
Association  for  the  lieform  and  Codification  of  the  Law  of 
Nations  received  an  invitation  from  the  Lord  Mayor  and 
the  Common  Council  of  the  city  of  London  to  hold  tlieir 
thirteenth  conference  in  the  Guildhall.  Again,  in  order  to 
see  whether  a  satisfactory  arrangement  could  be  brought 
about  upon  this  much- vexed  Bill  of  Lading  question,  its 
rediscussion  was  announced  on  the  programme.  Before, 
however,  I  report  what  took  place  on  that  occasion,  I 
cannot  refrain  from  quoting  that  part  from  the  ILon.  Sir 
Charles  Butt's  opening  address  on  July  25,  1887,  in  which 
this  learned  Judge  alludes  to  the  subject  under  considera- 
tion.    He  said  : — 

But  let  me,  in  the  first  instance,  say  a  word  on  a  matter  to 
which  your  attention  is  invited,  and  in  respect  of  which  the  aims 
of  the  Association  should  run  a  chance  of  early  realisation. 

For  a  time  it  seemed  as  if  the  efforts  of  the  Association  to 
bring  about  uniformity  of  contracts  of  affreightment  were  likely 
to  result  in  a  speedy  and  successful  issue. 

At  the  conference  held  at  Hamburg  in  August  1885,  a  draft 
bill  of  lading  was  presented  to  the  meeting,  which  embodied  by 
reference  a  '  Code  of  Affreightment,'  also  submitted  to  the  members 
attending  that  conference. 

The  object  of  that  mode  of  dealing  with  the  matter  was,  I 
understand,  to  avoid  undue  length  of  the  bill  of  lading  itself. 
Now,  whilst  I  agree  with  the  opinions  expressed  by  the  majority 
of  members  at  that  meeting,  I  doubt  whether  the  modus  operandi 
then  suggested  is  the  best  that  might  be  adopted.  The  rules 
forming  the  '  Code  of  Affreightment '  may  be  good  in  themselves 
but  they  appear  to  me  to  deal  with  so  many  matters  of  detail,  with 
so  much  that  is  of  comparatively  minor  importance,  that  I  should 
despair  of  inducing  i^liipowners,  at  the  present  time,  to  adopt  a 


404  MArailME   LEGISLATION. 

form  of  bill  of  lading  incorporating  all  those  rules.  On  the  other 
hand,  I  see  no  reason  why  a  short  bill  of  lading  may  not  be  framed, 
containino-  within  its  four  corners  all  essential  stipulations  binding 
shipowner  and  merchant  alike.  The  real  difficulty  lies  not  in  the 
form  of  the  bill  of  lading,  but  in  the  question  of  the  insertion  of 
one  provision  with  reference  to  which  merchants  on  the  one  hand, 
and  a  large  number,  if  not  a  majority  of  shipowners  on  the  other 
are  at  issue. 

The  real  difficulty  is  that  shipowners  refuse  to  accept  any  bill 
of  lading  which  leaves  them  responsible  for  the  negligence  of  their 
servants,  the  masters  and  crews  of  their  vessels. 

At  a  meeting  of  the  members  of  this  Association  held  at  Liver- 
pool in  1882,  a  form  of  bill  of  lading  exempting  the  shipowner 
from  liability  for  the  negligence  of  his  servants  was  approved  of; 
but  at  the  more  recent  conference  at  Hamburg  in  the  month  of 
August  1885,  a  resolution  to  the  effect  that  the  shipowner  ought 
not  to  be  allowed  to  protect  himself  from  such  liability  was  pro- 
posed, and  carried  by  a  considerable  majority. 

Since  that  time,  the  matter  has  not  been  allowed  to  rest.  The 
Chambers  of  Commerce  of  two  most  important  commercial  cities 
— Hamburg  and  London — have  given  expression  to  opposite  views 
on  this  question  ;  the  Chamber  of  Commerce  of  Hamburg  holding 
tliat  the  shipowner  should,  the  Chamber  of  Commerce  of  London 
that  he  should  not,  be  exempt  from  liability  for  the  negligence  of 
liis  master  or  crew. 

The  controversy  has,  it  seems  to  me,  been  embittered  by  the 
use  by  some  of  the  large  lines  of  steamers  of  bills  of  lading  ex- 
empting them  from  almost  every  sort  of  responsibility.  These  so- 
called  contracts  amount,  in  reality,  to  little  more  than  this  :  '  You 
])ay  me  the  freight,  and  I  will  do  what  I  please  with  your  goods.' 
How  comes  it  that  such  conditions  are  ever  accepted  by  the  mer- 
chant ?  This  question  admits  of  one  answer,  and  one  answer 
alone.  He  accepts  simply  because  he  has  no  choice.  Submission 
is  forced  on  him,  and  forced  on  him  in  defiance  of  the  fundamental 
duties  of  the  carrier. 

W(;rc  the  majority  of  shipowners  inclined  to  insist  on  the  im- 
poriition  of  conditions  so  manifestly  unreasonable,  the  labours  of 


INTERNATIONAL  LAW   OF  AFFREIGHTMENT.  495 

this  Association  to  reconcile  the  apparently  conflicting  interests  of 
merchaut  and  shipowner  respectively  must  of  necessity  be  un- 
availing. In  that  case  we  had  better  stand  aside,  and  let  the 
Leerislatures  of  the  different  countries  deal  with  the  matter. 

I  believe,  however,  that  merchants  and  shipowners,  alike,  desire 
only  a  reasonable  solution  of  the  question ;  and  that  the  real  point 
to  be  determined  is  what  is  reasonable. 

There  are  those  who  think  that  when  once  an  employer  of 
labour,  whether  shipowner  or  other  person,  has  taken  due  care 
and  precaution  to  secure,  so  far  as  may  be,  the  competence  and 
trustworthiness  of  his  agents,  or  servants,  he  ought  not  to  bo  held 
civilly,  any  more  than  he  is  held  criminally,  responsible  for  their 
wrongful  acts.  That  is  a  question  of  very  large  dimensions,  on 
which  opinions  may  differ,  and  which  it  is  not  for  me  to  determine  ; 
but  it  may  not  be  out  of  place  to  remind  those  who  hold  this 
opinion  that  it  is  a  view  of  the  employer's  liability  which  the 
legislation  of  the  great  majority  of  civilised  states  refuses  to 
sanction. 

But  apart  from  this  more  general  question  of  the  responsibility 
of  employers  for  the  negligence  of  their  servants,  the  shipowners 
contend  that  in  their  case  an  exception  should  be  made,  on  the 
ground  of  the  very  large  responsibilities  necessarily  placed  upon 
servants  who,  from  the  nature  of  their  occupation  and  employment, 
are  to  an  unusual  extent  beyond  the  control  of  the  employer.  The 
contention  is  worthy  of  careful  and  respectful  consideration ;  but  I 
would  venture  to  suggest,  for  the  consideration  of  those  by  whom 
it  is  put  forward,  whether  the  directors  of  a  railway  company  have, 
for  practical  purposes,  more  control  over  the  engine-driver,  who 
fails  to  see,  or  neglects  to  obey,  a  signal,  than  has  the  shipowner 
over  his  captain,  who  runs  his  vessel  on  a  rock,  from  failino-  to 
observe,  or  to  appreciate,  the  timely  warning  of  the  lighthouse. 
Again,  for  all  practical  purposes,  has  the  man  who  sends  his 
carriage  or  his  cart  along  the  highway  more  control  over  his 
coachman,  or  his  driver,  who  runs  down  the  carriage  of  a  third 
person,  than  has  the  shipowner  over  his  captain  who  runs  down 
the  third  person  on  the  high  seas  ? 

These  are  matters  on  which  I  do  not  presume  to  pronounce 


4C6  MARITIME   LEGISLATION. 

an  opinion  ex  cathedra.  I  n:erely  desire  to  suggest  them  for  the 
consideration  of  those  engaged  in  the  controversy,  in  the  hope 
that  the  honesty  of  purpose,  which  I  am  persuaded  animates  all 
parties  concerned,  aided  by  mutual  forbearance,  may,  ere  long, 
bring  your  labours,  in  this  branch  of  your  undertaking,  to  a  satis- 
factory issue. 

The  discussion  on  the  subject  was  fixed  for  Wednesday, 
July  27,  and  took  place  under  the  presidency  of  Dr.  Sieve- 
king  (President  of  the  Hanseatic  Court  of  Appeal  at 
Hamburg)  with  a  result  which  might  have  been  foreseen, 
from  the  large  number  of  gentlemen  interested  in  the 
shipowning  interest  who  had  recently  become  members 
of  the  Association, 

The  Chairman  opened  the  discussion  on  the  above  question, 
and  explained  the  present  position  of  the  question,  suggesting 
that  the  attention  of  the  conference  should  be  directed  solely  to 
the  negligence  clause.  The  question  had  twice  been  before  the 
conference — at  Liverpool,  and  again  at  Hamburg  in  1885.  At 
Liverpool,  the  form  of  bill  of  lading  adopted  excepted  the  '  act  of 
God,  perils  of  the  sea,  fire,  barratry  of  the  master  and  crew,  enemies, 
pirates,  and  thieves,  arrest  and  restraint  of  princes,  rulers,  and 
people,  collisions,  stranding  and  other  accidents  of  navigation,  even 
when  occasioned  by  the  negligence,  default,  or  error  in  judgment 
of  the  pilot,  master,  mariners,  or  other  servants  of  the  shipowners.' 
The  bill  of  lading  adopted  at  Hamburg  contained  the  following 
clause :  *  The  shipowner  shall  bo  responsible  that  his  vessel  is 
properly  equipped,  manned,  provisioned,  and  fitted  out  in  all  re- 
spects seaworthy  and  capable  of  performing  her  intended  voyage 
and  for  the  stowage  and  right  delivery  of  the  goods.  He  shall 
also  bo  responsible  for  the  barratry,  faults,  and  negligence,  but  not 
for  errors  in  judgment,  of  the  muster,  officers,  and  crew.'  Before 
the  Hamburg  conference  concluded,  a  protest  was  handed  in  by 
the  Hamburg  Chamber  of  Commerce  declaring  that  in  the  opinion 
of  tliat  Cli.'iiiibor  the  clause  was  too  strong  against  shijiowners, 
ami  lliiif  it  would  not  l)o  practicable      lie  brought  the  proceedings 


Ml 


INTERNATIONAL   LAW   OF   AFFREIGHTMENT.  ^07 

of  tlio  Hamburg  conference  to  a  conclusion  by  expressing  the  hope 
that  before  the  next  conference  there  would  be  an  interchange  of 
opinion,  and  that  some  compromise  would  be  arrived  at.  Since 
1885  a  bill  of  lading  had  been  approved  by  the  Chambers  of 
Commerce  of  Hamburg  and  Bremen,  and  between  this  bill  of 
lading  and  the  Liverpool  Bill  of  Lading  there  was  great  similarity. 

Mr,  Gray  Hill  (Liverpool)  moved  : — 

'  That  the  following  principle  adopted  by  the  conference  of 
this  Association  held  at  Liverpool  in  1882  be  now  confirmed  and 
adopted  as  the  basis  of  discussion.  That  the  principle  of  the 
common  form  of  bill  should  be  this — that  the  shipowner,  whether 
by  steam  or  sailing  ship,  should  be  liable  for  the  faults  of  his 
servants  in  all  matters  relating  to  the  ordinary  course  of  the  voyage, 
such  as  the  stowage  and  right  delivery  of  the  cargo  and  other 
matters  of  this  kind  ;  but,  on  the  other  hand,  the  shipowner  should 
be  exempt  from  liability  for  everything  which  comes  under  the  head 
of  accidents  of  navigation,  even  though  the  loss  from  these  may  be 
indirectly  attributable  to  some  fault  or  neglect  of  the  crew.' 

He  said  this  bill  of  lading  was  not  sprung  upon  the  conference 
which  adopted  it.  On  the  contrary,  it  was  carefully  prepared  by 
a  committee  composed  of  representatives  of  all  associations  who 
were  interested  in  the  matter.  Shipowners  were  there,  under- 
writers were  there,  cargo-owners  were  there,  and  there  was  a  small 
delegation  of  lawyers.  Nine  associations  were  represented,  and 
only  two  of  them  were  shipowners'  associations.  On  the  other 
hand,  not  one  single  British  shipowner,  British  underwriter,  or 
British  merchant  attended  the  Hamburg  conference.  He  was 
not  able  to  say  how  far  the  same  interests  were  represented  from 
the  Continent,  but  he  believed  he  was  correct  in  stating  that  the 
majority  of  the  gentlemen  present  were  jurists  who  were  not  suffi- 
ciently acquainted  with  the  wants  of  the  mercantile  world.  This 
absence  of  the  English  mercantile  world  from  the  conference  was 
easily  accounted  for  :  the  mercantile  world  in  this  country  reo-arded 
the  matter  as  having  been  settled  at  Liverpool.  But  even  in  the 
assembly  to  which  he  had  referred,  the  Hamburg  Bill  of  Lading 
was  adopted  by  only  24  against  17  votes.  The  action  of  Liverpool 
had  been  followed  almost  universally,  while  the  action  of  Hamburg 

K  K 


498  MARITIME   LEGISLATION. 

had  been    almost  entirely  neglected,  the    reason  being  that   the 
Liverpool  Bill  of  Lading  met  the  wants  of  the  mercantile  world, 
while  the  Hamburg  Bill   did  not.     '  Error  in  judgment,' so  far  as 
Eno-lish  law  was  concerned,  meant  nothing.     Either  shipowners' 
sers-ants  were  negligent  or  they  were  not  negligent.     The  question 
was  simply  whether  there  was  negligence,  and  therefore  the  Ham- 
burg Bill  appeared  to  give  what  in  reality  it  did  not  give.     They 
were  there  not  to  discuss  what  the  law  ought  to  be,  they  were  there 
to  discuss  what  form  of  bill  of  lading  they  should  recommend  to 
the  mercantile  world ;  but  if  the  mercantile  world  would  not  adopt 
that  form  they  were  wasting  their  time  at  that  meeting.     If,  as 
the  President  said  on  Monday,  shipowners  were  unreasonable  and 
would  not  adopt  the  form  of  bill  of  lading  suggested,  the  Associa- 
tion might  stand  aside  and  leave  the  matter  to  be  decided  by  legis- 
lation.    The  decision  of  an  important  body  like  that  might  have 
considerable  influence  on  legislation,  and  he  therefore  drew  atten- 
tion to  the  question  whether  there  ought  to  be  a  change  in  the  law. 
As  it  stood  the  law  was  very  much  against  the  shipowner,  because 
unless  he  made  special  contracts  he  was  liable  for  any  kind  of  neg- 
ligence on  the  part  of  his  servants.     It  was  now  proposed  that  the 
law  should  step  in  and  make  the  shipowner  liable,  although  he  said 
by  his  contract  that  he  was  not  liable.     What  about  the  freedom 
of  contract  ?     Surely  shipowners  were  able  to  take  care  of  them- 
selves ?     They  were  quite  able  to  make  their  own  arrangements. 
The  monopoly  argument  was  nonsense.     This  was  a  contract  with 
reorard  to  the  cargo,  and  nothing  else.     The  shipowner  was  bound 
by  the  terms  of  this  resolution  to  see  that  his  ship  was  seaworthy. 
What  more  could  he  do  ?     There  were  no  passengers  on  board,  and 
if  the  shipowner  provided  a  vessel  which  was  seaworthy,  in  whose 
hands  was  the  question  whether  there  should  be  loss  of  life  ?     It 
was,  of  course,  in  the  hands  of  the  crew.     Surely  the  probabilities 
were  that  the  crew  would  look  after  their  own  lives  !     If  they  did 
not,  no  contract  between  other  parties  could  affect  them  at  all.    Ho 
was  satisfied  that  in  the  minds  of  lawyers  there  lurked  a  prejudice 
on  the  question,  traceable  to  the  old  idea  that  the  carrier  was  to  be 
liabli*  for  everything  but  the  act  of  CJod   and  the  Queen's  enemy. 
Souk-  of  till-  -liidgt'S  who   Inid   down  that    priucijilc   liascd  it  on  tlu; 


INTEIIXATIOXAL   LAW   OF   AFFREIGIIT.Ml'.XT.  VM 

considerution  that  the  carrier  was  a  dangerous  kind  of  man,  who 
might  combine  with  thieves  and  robbers  to  take  away  the  goods 
consigned  to  him.  But  did  that  state  of  things  apply  now  ?  Cer- 
tainly not ;  and  shipowners  asked  for  power  to  contract  themselves 
out  of  such  liabilities.  He  doubted  whether  the  law  could  pi'event 
a  contract  being  made  as  the  parties  to  it  wished.  They  had  seen 
many  fruitless  attempts  to  interfere  with  the  freedom  of  contract. 
If  they  did  that,  what  would  bo  the  result  ?  They  might  possibly 
put  the  risk  on  the  shoulders  of  the  shipowner,  but  they  would  not 
be  able  to  keep  it  there.  They  could  not  transfer  the  incurrence 
of  this  risk  without  remunerating  the  person  to  whom  it  was  trans- 
ferred. No  thimble-rigging  would  enable  them  to  get  over  that. 
And  if  there  was  any  force  behind  the  Hamburg  resolution  it  was 
tiie  force  of  those  underwriters  who  wanted  to  have  their  cake  and 
to  eat  it.  He  urged  the  conference  to  be  practical,  and  to  bear  in 
mind  they  were  recommending  a  document  for  the  acceptance  of 
the  mercantile  world,  and  do  not  let  them  recommend  something 
with  which  the  mercantile  world  would  have  nothing  to  do. 

Mr.  John  Glover  (London)  seconded  the  motion.     He  said 
he  would  like  to  remove  any  prejudice  which  might  exist  in  the 
mind  of  any  merchants  or  other  gentlemen  present  who  might  not 
have  been  able  to  follow  this  negligence  controversy  quite  so  closely 
as  shipowners  had  been  compelled  to  do.     They  were  not  met  to 
defend  bad  bills  of  lading.     They  had  given   up  that.     They  all 
believed  there  were  a  good  many  things  in  bills  of  lading  in  the 
early  days  of  steamships  which  were  not  necessary  for  the  ship- 
owners, and  which  were  contrary  to  the  public  interest.     Liverpool, 
after  long  and  careful  consideration,  had  adopted  a  rational  bill 
of  lading,  and  they  defended  that  rational  bill  of  ladino-.     In  the 
second  place,  he  wished  to  emphasise  the  fact  that  they  were  not 
seeking  to  be  exempted  from  the  consequences  of  their  own  neoli- 
gence.     So  far  as  a  shipowner  could  make  a  vessel  complete  for  its 
intended  voyage,  it  was  right  that  he  should  be  responsible,  and 
the  Liverpool  Bill  of  Lading  made  him  responsible.     What  they 
were  trying  to  remove  was  a  species  of  vicarious  suffering  by  which 
shipowners  were  made  responsible  for  all  the  mistakes  of  the  pro- 
fessional men  who  were  put  on  board  their  ships.     He  held  in  his 

K  K  2 


500  MARITIME   LEGISLATION. 

hand  a  report,  dated  1872,  signed  by  Mr.  Macandrew,  whom  he 
was  glad  to  see  on  the  platform  to-day.  That  report  contained  a 
neo-lio"ence  clause  with  which  he  was  quite  satisfied,  and  which 
Liverpool  ratified  in  1882.  This  negligence  clause  had  had  no 
effect  on  merchants  in  increasing  their  power  of  getting  paid  for 
damage  in  the  owner's  control,  for  j)remiums  had  not  increased 
since  1882.  Indeed,  he  ventured  to  say,  that  in  the  last  ten  years 
the  premiums  of  insurance  on  the  leading  lines  to  America  and 
the  East  had  fallen  by  nearly  one-half;  and  what  was  still  more 
extraordinary  was,  that  the  insurance  companies  had  made  good 
profits  out  of  the  reduced  premiums.  Why  ?  Only  one  reason 
was  possible  — the  maritime  traffic  was  greater ;  it  was  carried 
on  with  such  superior  ships,  and  with  such  consummate  skill ; 
it  was  safer,  and  no  one  had  suffered  since  the  adoption  of  this 
negligence  clause.  The  absence  of  such  clauses  had  involved 
shipowners  in  serious  losses,  and  the  Courts  had  become  so  apt 
to  split  hairs  that  shipowners  did  not  know  where  they  stood. 
Every  shipowner  was  obliged  to  insure,  that  insurance  became 
double  insurance,  and  they  all  knew  the  risk  of  litigation  which 
was  involved  in  double  insurance.  It  was  a  question  who 
was  to  pay  the  loss  if  the  negligence  clause  was  not  there. 
Our  English  flag  was  under  a  disadvantage  in  this  matter.  The 
liability  of  shipowners  abroad  was  not  in  person,  but  in  revenue, 
so  that  if  a  ship  went  to  the  bottom  the  matter  ended.  In  this 
country,  though  the  ship  and  the  freight  were  lost,  the  owner 
could  be  sued  personally.  They  were,  therefore,  forced  to  look 
at  the  question  in  the  light  of  the  responsibility  which  the  English 
law  placed  upon  the  shipowner.  They  were  not  free  to  choose 
their  own  captains,  mates,  and  engineers.  If  a  man  wanted  to 
be  a  captain,  a  mate,  or  an  engineer,  he  had  to  serve  so  many 
years,  and  go  through  a  series  of  examinations,  such  as  a  doctor 
would  have  to  go  thi'ough,  and  then  he  became  a  professional 
man.  That  man  exercised  a  judgment,  and  shipowners  said 
that  it  was  not  fair,  when  they  were  restricted  in  the  choice  of 
their  servants,  that  they  should  be  held  responsible  for  the  mis- 
takes of  their  servants.  They  therefore  asked  the  conference  to 
rcaflinii   tlic    Livi-rjjool   resolution,  because  of  wliat  had   ]iai)})on('d 


INTERNATIONAL  LAW   OF  AFFREIGHTMENT.  501 

since  it  was  adopted  in  1882.  He  did  not  like  to  see  the  Associa- 
tion on  two  sides  of  the  question.  The  discussion  of  the  subject 
at  Liverpool  occupied  fifty  or  sixty  pages  of  the  report  of  their 
proceedings.  They  discussed  the  bill  of  lading  line  by  line,  and 
at  last  came  to  a  decision,  recommending  a  bill  of  lading,  which 
they  called  an  International  Bill  of  Lading.  They  agreed  that  a 
uniform  bill  of  lading  was  not  practicable,  but  they  thought  it  was 
possible  to  have  separate  bills  of  lading  for  various  trades  on  the 
principle  of  the  line  laid  down  in  the  resolution.  Their  American 
friends  had  a  few  objections  to  offer  to  what  was  done  at  Liverpool, 
but  their  criticisms  were  very  reasonable,  and  some  of  them  were 
met.  With  reference  to  this  particular  question,  that  of  negli- 
gence, the  New  York  Produce  Exchange  said  :  '  This  exemption 
is  demanded  by  the  circumstances  under  which  modern  steamship 
traffic  is  carried  on,  and  is  a  change  eminently  just  and  necessary.' 
In  the  great  coal  trade  of  England  the  question  was  taken  up  at  a 
conference  in  London,  and  a  simple  bill  of  lading  for  the  coal 
trade,  embodying  a  negligence  clause,  was  settled  in  1885.  In 
the  same  year  there  was  the  meeting  at  the  Baltic,  where  it  was 
decided  that  there  should  be  a  conference  of  merchants  and  ship- 
owners to  settle  the  question.  Seven  merchants  and  six  shipowners 
were  selected ;  and,  after  a  great  many  meetings,  they  came  to  a 
very  satisfactory  bill  of  lading,  which  distinctly  confirmed  the 
Liverpool  decision.  In  consequence  of  what  fell  from  the  Presi- 
dent the  other  day,  he  wished  to  refer  to  what  had  been  done  in 
Loudon.  He  understood  Mr.  Justice  Butt  to  say  that  the  Chamber 
of  Commerce  of  London  had  prepared  a  bill  of  lading,  in  which  it 
was  denied  that  the  shipowner  should  have  this  negligence  clause. 
It  was  very  singular  how  that  happened,  but  it  did  not  happen. 
After  the  Baltic  meeting  the  Chamber  of  Commerce  of  London 
convened  a  meeting  of  merchants,  from  which  shipowners  were 
excluded,  and  appointed  a  sub-committee.  This  sub-committee 
recommended  a  resolution  which  would  have  left  the  matter  in  its 
present  uncertain  condition ;  but  when  the  resolution  was  brought 
before  the  Chamber,  the  Chamber  came  to  the  conclusion  that  the 
matter  was  not  ripe  for  such  a  step,  and  it  did  nothing.  Con- 
sequently it  was  not  right  to  say  that  the  London  Chamber  of 


502  MARITIME   LEGISLATION. 

Commerce  was  in  flivour  of  the  Hamburg  decision.  He  thought 
Liverpool  had  a  right  to  comphxin  of  the  action  of  Dr.  Wendt. 
Why  was  the  decision  of  Liverpool  not  considered  conclusive  ?  He 
did  not  think  it  was  right  to  seize  the  opportunity,  when  there  was 
no  British  shipowner  present,  to  reopen  a  question  which  had  been 
the  subject  of  such  long  and  careful  consideration.  He  thought 
he  had  said  enough  to  show  that,  if  the  Association  wanted  to 
render  any  further  service  in  the  matter,  there  was  only  one  course 
open  to  them — they  could  not  be  on  both  sides  of  the  question — 
they  arrived  at  a  decision  in  Liverpool ;  they  ought  to  confirm 
that  decision.  He  appealed  to  his  friend  Dr.  Wendt  to  be  satisfied. 
He  had  scored  very  well  in  this  controversy.  He  hoped  the  Asso- 
ciation would  take  a  sensible  course.  He  was  sure  Her  Majesty's 
Government  would  not  consent  to  interfere  with  their  liberty  of 
contract ;  but  let  the  Association  take  a  consistent  position  and  get 
rid  of  that  which  common  sense  had  already  so  clearly  condemned. 
I  said  :  1  have  been  requested  by  the  executive  council  of  this 
Association  to  explain  the  reasons  why,  after  the  decision  of  the 
Liverpool  Congress  in  1882,  this  subject  had  been  reopened  and 
debated  at  the  Hamburg  Congress  in  1885.  They  were  simply 
that,  soon  after  it  had  become  known  that  the  Liverpool  Congress 
had  decided  to  relieve  shipowners  from  liability  for  the  negligence 
of  their  servants  (the  masters  and  crews  of  their  vessels),  numerous 
protests  were  addressed  to  the  officers  of  the  Association  by  dif- 
ferent chambers  of  commerce  and  bodies  of  underwriters,  not  only 
in  this  country',  but  also  in  India  and  Australia,  all  of  which  were 
reported  to  the  Milan  Congress  in  1883.  But  further,  there  had 
been  a  great  pressure  brought  to  bear  upon  the  executive  council 
by  the  most  important  chambers  of  commerce  and  underwriting 
bodies  in  the  interior  of  Germany — all  members  of  the  Associa- 
tion— to  reopen  this  question  ;  and  when  the  Senate  of  Hamburg 
honoured  us  with  the  invitation  to  hold  our  conference  in  that  city 
in  1885,  it  was  decided  to  make  use  of  that  opportunity  to  do  so. 
As  all  the  members  of  this  Association  had  due  notice  oi  this 
intention,  not  only  llirough  llic  general  secretary,  but  likewise  by 
tlic  ])ublic  press,  which  was  equally  available  to  such  shipowners 
a-  1i:h|    Tidf    jriinf'd    our    Association,  it  is  quite   evident    ihiit  if  the 


INTERNATIONAL   I- AW   OF   AFFREIGHTMENT.  rm 

English  shipowners  did  not  think  it  advisable  to  see  their  interests 
represented  at  Hamburg,  it  was  not  the  foidt  of  the  Association. 
It  is  well  known  that  I  represent  as  many  underwriters  of  ships  as 
of  cargoes.  I  therefore  look  at  the  matter  from  an  impartial  point 
of  view;  and  if  I  have  been  in  favour  of  the  liability  of  shipowners, 
it  is  because  my  experience  has  taught  me  that  nine-tenths  of  all 
collisions  at  sea  are  clearly  caused  by  the  negligence  of  the  crew. 
But  before  I  sit  down,  let  me  add  a  few  words  on  the  most  con- 
spicuous line  of  argument  used  with  regard  to  the  matter  at  issue 
between  ship  and  cargo  owners  and  their  respective  underwriters. 
Where  a  ship  has  been  lost  through  the  fault  of  the  master,  and 
the  underwriter  of  cargo  on  board  has  sued  the  shipowner  for  his 
loss,  it  has  often  been  argued  that  the  underwriter  should  not  be 
allowed  to  make  such  a  claim,  as  he  had  received  a  premium  for 
this  risk ;  and  public  opinion  has  frequently  been  misled  by  this 
line  of  argument.  I  may  therefore  be  permitted  again  to  refer  to 
the  well-known  principle  that  the  contract  of  insurance  is  solely  a 
contract  of  indemnity  between  underwriter  and  assured.  As  soon 
as  the  underwriter  has  paid,  he  acquires  all  the  rights  of  the 
assured  against  third  parties  ;  and  as  he  covers  only  his  insured, 
and  does  not  also  insure  the  shipowner  against  the  negligence  of 
his  servants,  I  fail  to  see  why  he  should  not  make  any  claim 
against  the  shipowner.  I  have  never  heard  it  stated  that  it  is  an 
iniquity  if  the  underwriter  of  a  ship  lost  by  the  fault  of  another 
vessel  recovers  the  loss  from  the  owner  of  the  latter  vessel.  This 
underwriter  has  likewise  received  his  premium  for  the  risk  in 
question  ;  and  why  shovild  he  be  entitled  to  recover,  and  the  sau'e 
remedy  be  refused  to  the  cargo  underwriter  ? 

Hehr  Laeisz  (Hamburg)  supported  the  resolution,  and  said 
that  he  believed  the  general  feeling  amongst  jurists  in  Germany 
was  in  favour  of  the  negligence  clause  being  embodied  in  the  bill 
of  lading. 

Mr.  Barnes  (London)  said  this  v/as  a  case  in  which  a  good 
underwriter  might  exclaim,  '  Save  me  from  my  friends.'  It  was 
only  the  litigious  underwriter  who  wished  to  dispute  claims.  He 
happened  to  know  that,  in  consequence  of  the  continual  friction 
between  some  small  underwriters  and  shipowners,  the  great  lines 


o04  MARITIME   LEGISLATION. 

had  it  within  their  intention  to  issue  contracts  to  deliver ;  and  he 
pat  it  to  Dr.  "Wendt  and  his  friends  whether  six  months  after  that 
course  was  taken  the  underwriters  would  think  that  the  action  of 
the  conference  had  been  wise  if  it  adopted  the  Hamburg  Bill  of 
Ladino-  ?  The  London  Chamber  of  Commerce  did  not  represent  in 
any  degree  mercantile  or  shipowners'  interests  on  this  question. 
He  knew  a  case  where  a  small  committee  of  the  Chamber  carried 
a  resolution,  and  the  secretary  forwarded  it  as  representing  the 
opinion  of  the  Chamber.  As  soon  as  the  facts  were  known,  the 
merchants  of  the  City,  headed  by  Messrs.  Rothschild,  signed  a 
protest  condemnatory  of  everything  that  had  been  done,  and  a 
committee  was  called  of  people  who  understood  the  question. 
They  censured  the  secretary  and  the  committee  for  having  gone 
out  of  their  way  and  adopted  such  a  course  without  calling  the 
general  members  together.  No  shipowner  had  ever  heard  of  any 
such  idea  as  that  the  London  Chamber  was  going  to  discuss  this 
question,  still  less  that  it  was  going  to  send  a  resolution  favouring 
any  particular  course.  If  such  a  thing  had  been  done,  it  would 
be  necessary  that  it  should  be  followed  up  in  some  other  way  by 
getting  an  association  which  would  really  represent  mercantile 
interests.  If  nine-tenths  of  the  losses  at  sea  were  due  to  negli- 
gence, what  was  the  object  of  insurance,  except  to  provide  against 
loss,  and  those  losses  ought  to  be  covered  by  the  underwriters. 
If  that  association  were  to  affirm  the  Hamburg  resolution,  the 
great  body  of  shipowners  would  combine  together  and  have  a 
gigantic  insurance  association,  and  they  would  issue  a  bill  of  lading 
simply  receiving  the  goods  and  undertaking  to  deliver  them  and 
to  cover  them  against  all  risks.  Shipowners  were  heartily  tired  of 
having  to  pay  for  a  pipe  bursting  or  other  similar  things  which 
ought  to  be  paid  for  by  the  underwriters,  and  they  had  far  better 
meet  the  difficulty  by  taking  the  risk  from  the  outset. 

Mr.  Thomas  Scrutton  (London)  said  it  had  come  within  his 
duty  in  the  last  year  or  two  to  examine  rather  carefully  the  records 
made  in  connection  with  the  only  official  documents  which  wo 
possessed  in  this  country  respecting  accidents  at  sea,  and  unless 
those  rcicords  were  utterly  wrong,  there  was  no  foundation  for  the 
calculation  of  Dr.  Wendt.     The  official  returns  showed  that  out 


INTEKNATIONAL   LAW    OF  AFFREIGHTMENT.  505 

of  a  total  loss  of"  over  G,000  lives,  no  fewer  than  4,043  were  tine  to 
the  weather  alone,  and  under  weather  it  included  heavy  gales, 
hurricanes,  calms,  currents,  fogs,  and  lightning.  He  hoped  that 
the  Association  would  distinctly  put  aside,  therefore,  the  impression 
that  nine-tenths  of  the  accidents  were  due  to  the  negligence  of 
crews. 

Mr.  Wreacks  (New  York)  stated  that  the  negligence  clause 
adopted  at  New  York  was  the  same  as  that  resolved  upon  at 
Liverpool,  the  only  difference  being  the  transposition  of  the  clause 
referring  to  the  want  of  due  diligence  on  the  part  of  the  ship- 
owner, with  the  object  of  emphasising  the  feeling  that  under  no 
circumstances  should  shipowners  be  excused  for  their  own  negli- 
gence ;  but  when  they  exercised  all  due  diligence  in  the  selection 
of  their  servants  they  were  protected  in  the  bill  of  lading. 

M.  Clunet  (Paris)  referred  to  the  decisions  on  this  subject  of 
the  Conference  on  Commercial  Law,  which  met  at  Antwerp  in  1885, 
and  in  order  to  bring  the  Liverpool  Bill  of  Lading  into  conformity 
with  its  decisions,  desired  to  propose  the  following  amendments  to 
the  resolution  before  the  meeting  : — 

L  '  That  the  Liverpool  form  of  bill  of  lading  should  be  amended 
by  the  addition,  after  the  words  "  barratry  of  the  master  and  crew  '' 
of  the  words  "  (but  not  common  theft)." 

2.  '  That  it  be  also  amended  by  the  addition  after  the  words, 
^'  error  in  judgment  of  the  pilot,  master,  or  shipowner,"  of  the 
words,  "  (but  not  the  acts  of  the  grossest  fault  and  recklessness)."  ' 

Mr.  Brown  (Glasgow)  supported  the  motion,  with  which,  he 
said,  Glasgow  was  thoroughly  in  accord. 

Mr.  M' Andrew  (London)  held  that  it  was  no  use  attempting  to 
introduce  a  set  form  of  bill  of  lading  when  past  experience  showed 
that  it  was  in  the  power  of  anybody  to  depart  from  it  if  they  chose. 
Legislation  is  necessary  in  order  that  the  liabilities  of  the  ship- 
owners might  be  defined,  and  Mr.  Glover,  instead  of  hinderino- 
the  action  of  the  London  Chamber,  should  have  assisted  them  in 
bringing  the  subject  before  the  Legislature.  He  would  be  glad  if 
Mr.  Glover  would  now  give  them  that  assistance. 

Mr.  Allen  (Tiiverpool)  supported  the  resolution. 

Mr.  R.  Lowndes  (Liverpool)  thought  it  would  be  far  better 


506  MARITIME   LEGISLATION. 

that  the  conference  should  pass  the  resolution  than  leave  the 
question  to  be  settled  by  the  Legislature. 

Herr  Ahlers  (Hamburg)  urged  the  appointment  of  a  com- 
mission to  consider  the  question. 

M.  Theodore  C.  Engels  (Antwerp)  supported  the  proposal  of 
:\Ir.  Gray  Hill. 

Mr.  Elisha  Smith  (Liverpool)  complained  that  only  one  side 
of  the  question  had  been  put  forward.  He  had  no  objection  to 
the  clause,  but  it  would  be  wrong  to  let  it  go  forth  that  the  con- 
ference Avanted  only  the  Liverpool  Bill  of  Lading.  The  Liverpool 
Bill  of  Lading  was  a  compromise.  Merchants  were  prepared  to 
give  shipowners  all  they  wanted  in  this  matter.  Would  ship- 
owners in  return  not  give  them  fair  play?  Merchants  would 
release  shipowners  from  all  things  which  were  not  under  their  con- 
trol, if  shipowners  would  only  hold  themselves  liable  for  the  things 
that  were  under  their  control.  If  they  accepted  the  Liverjoool  Bill 
of  Lading,  he  promised  them  that  they  should  hear  nothing  more 
on  the  question. 

The  Chairman  then  put  the  question.  M.  Clunet,  at  the 
suggestion  of  the  Chairman,  withdrew  his  first  amendment,  and 
the  second  fell  to  the  ground  for  want  of  a  seconder. 

!Mr.  Gray  Hill's  resolution  was  then  put  to  the  meeting,  and 
carried  by  an  overwhelming  majority,  upwards  of  120  voting  in  its 
favour  and  1  against ;  a  result  which  was  natural,  as  those  who  could 
not  agree  with  the  resolution,  seeing  the  large  body  of  shipowners 
and  their  friends  would  put  them  in  a  minority,  abstained  from 
voting  altogether. 

After  faithfully  recording  tliis  result,  I  luive  now,  in 
order  to  close  the  history  of  this  niovenient  with  the 
pujjlication  of  this  volume,  only  to  refer  to  the  report  of 
the  Koyal  Commission  on  Loss  of  Life  at  Sea,  to  which, 
as  previously  stated,  the  principal  firms  of  the  mercantile 
coiiiiininity  of  the  city  of  London  had  addressed  a  jx'lition, 
ill  whicli  they  expressed  llic  opinion  that  if  the  Ivoyal 
( 'oiiiiuis^ioii   slioiild   think  lil    lo   reroinmciid    llic   woi'dinyf 


INTERNATIONAL    LAW    OF   AFFREIGHTMENT.  507 

of    a    bill   of    lading,    such    recommendatioii   might   be 
universally  adopted. 

This  report,  dated  August  27,  1887,  evidently  proves 
that  the  Eoyal  Commissioners  have  not  thought  proper 
to  consider  the  subject  very  minutely,  or,  what  is  per- 
haps more  likely,  did  not  agree  on  the  wording  of  such 
a  document  as  they  could  be  sure  would  meet  general 
approbation.  It  contains  only  the  following  passages 
relating  to  — 

(2).  liksponsuhlity  of  shipowners  to  charterers  and 
Owners  of  Cargoes. 

By  the  common  law  the  shipownei'  is  responsible  to  the  owners 
of  the  cargo  which  his  vessel  carries  for  the  seaworthiness  of  the 
ship  and  for  the  negligent  acts  of  the  captain,  in  the  absence  of 
any  contract  to  the  contrary.  But  having  regard  to  the  supposed 
jieculiar  character  of  the  trade,  the  Legislature  has  for  many  years 
given  to  shipowners  the  benefit  of  an  exceptional  limitation  to  such 
responsibility.  They  are  not  liable  to  an  extent  exceeding  8L  per 
ton  on  the  registered  tonnage  for  injury  to  property  entrusted  to 
their  care  or  to  other  ships  or  their  cargoes.  They  have  also  an 
entire  immunity  from  liability  for  loss  by  fire.  There  has  also 
grown  up  of  late  years  a  practice  among  shipowners  to  make  large 
additional  exceptions,  by  their  bills  of  lading,  in  respect  of  their 
liability. 

Mr.  Hollams,  who  has  had  a  large  experience  as  a  solicitor  in 
the  conduct  of  shipping  cases,  says  :  '  In  my  opinion  some  of  the 
modern  bills  of  lading  are  objectionable  upon  the  ground  that  they 
free  the  shipowner  from  his  ordinary  responsibility  and  thus  pro- 
duce loss  of  life  and  loss  of  property,  and  on  the  ground  that  they 
are  only  nominal  contracts.  They  are  not  contracts  really  entered 
into,  they  are  only  contracts  by  a  fiction  of  the  law,  which  holds 
that  a  man  taking  a  bill  of  lading  must  be  presumed  to  have 
adopted  it.  This  is  a  view  which  lias  been  questioned  by  eminent 
Judges,  but  I  take  it  to  be  the  acknowledged  rule  of  law.  It  is  not 
a  contract  in  fact.' 


508  MARITIME   LEGISLATION. 

The  Royul  Commissiou  of  1874  recommended  that  any  provision 
in  a  bill  of  lading  or  other  agreement  having  for  its  object  or  effect 
to  avoid  or  limit  the  liability  of  a  shipowner  in  respect  of  goods 
shipped  under  it,  should  have  no  legal  validity,  if  the  loss  has  been 
occasioned  by  the  ship  having  been  sent  to  sea  in  an  unseaworthy 
condition,  unless  he  proves  that  he,  or  those  to  whom  he  commits 
the  management  of  his  business,  used  all  reasonable  means  to  make 
and  keep  his  vessel  seaworthy. 

"We  are  of  the  same  opinion. 

"VVe  think  no  shipowner  ought  to  be  relieved  by  contract  or 
otherwise  from  the  legal  obligation  to  properly  equip,  man,  pro- 
vision, outfit,  and  render  said  ship  seaworthy  for  performing  her 
intended  voyage ;  nor  from  the  legal  obligation  to  properly  stow 
and  deliver  her  cargo  as  agreed  by  the  terms  of  shipment  (except 
as  to  the  stowage  of  chartered  vessels  loaded  under  directions  of 
the  charterer). 

And  the  '  Summary  of  Eecommendations  '  with  which 
tlie  report  concludes  contains  only  the  following  sub.  : — 

(12).  That  any  provision  in  a  bill  of  lading  or  other  agreement 
having  for  its  object  or  effect  to  avoid  or  limit  the  liability  of  a 
shipowner  in  respect  of  goods  shipped  under  it  should  have  no 
legal  validity  if  the  loss  has  been  occasioned  by  the  ship  having 
been  sent  to  sea  in  an  unseaworthy  condition,  unless  he  proves  that 
lie  or  those  to  whom  he  commits  the  management  of  his  business 
used  all  reasonable  means  to  make  or  keep  the  vessel  seaworthy. 

In  closing  this  chapter,  let  me  call  attention  to  the 
consideration  of  a  few  points  which  seem  rather  to  have 
})een  lost  sight  of  during  the  controversy. 

One  of  tlie  peculiarities  of  the  contract  of  Affreight- 
iiicnt  is,  lliat  it  is  sometimes  defined  in  ihe  charter-party 
;iiid  sonietinies  in  the  bill  of  lading,  and  again  both  docu- 
ments have  frequently  to  l)e  examined  to  find  the  terms 
upf)]i  wliicli  the  goods  arc  cnn-icd.  Tt  is  nol  always  easy 
to  sec  uhi<-h  is  the  case   in   pai-licular  circumstances,  and 


INTERNATIONAL   LAW   OF  AFFREIGHTMENT.  509 

it  may  not  be  out  of  place,  therefore,  to  add  here  a  few 
words  of  explanation. 

The  charter-party  may  be  either  (1)  a  demise  or 
letting  of  the  ship  [locatio  navis),  or  (2)  of  the  ship  with 
the  services  of  her  master  and  crew  [locatio  navis  et 
ojjerarum  magistri  et  nauticorum),  or  (3)  a  sale  of  the 
right  to  have  goods  conveyed  {locatio  operis  vehendarum 
mercium). 

The  first  two  charter-parties  have  nothing  to  do  with 
the  affreightment ;  the  last  is  closely  connected  with  it, 
and  may  be  the  one  document  which  alone  defines  it. 

The  bill  of  lading,  on  the  other  hand,  is  sometimes 
considered  as  containing  the  contract,  but,  strictly  speak- 
ing, it  is  never  more  than  evidence  of  the  agreement,  and 
sometimes  it  is  little  more  than  a  receipt  for  the  goods. 

Speaking  generally,  the  charter-party  to  which  I  have 
last  referred  is  the  sole  contract  as  between  the  charterer 
and  the  shipowner,  and  in  case  of  any  dispute  between 
them  the  bill  of  lading  is  entirely  subsidiary  to  it.  These 
are  not,  how^ever,  the  parties  alone  interested  in  the 
affreightment ;  the  vessel  may  have  been  put  up  as  a 
general  ship,  or  the  bills  of  lading  may  be  endorsed  over 
to  third  parties,  in  which  case  the  contract  as  between 
the  shipowners  and  the  holders  (without  notice  of  the 
charter-party)  of  the  bills  of  lading  is  defined  simply  by 
the  bill  of  lading. 

As  therefore  either  the  charter-party  or  the  bill  of 
lading  may  be  the  governing  document,  it  is  of  the 
greatest  necessity  that  equal  care  should  be  taken  that 
each  should  accurately  describe  the  contract  which  it  is 
intended  should  be  entered  into.  Either  party  is  naturally 
at  liberty  to  insist  on  the  terms  being  inserted  which  he 
wishes  to  be  applied  ;  if  the  other  does  not  consent,  the 
contract  need  not  be  made  ;  but  it  should  be  remembered 


olO  MARITBIE    LEGISLATION. 

that  on  some  points,  if  the  document  is  silent,  the  law 
presumes  certain  conditions.  It  is  in  the  nature  of  the 
thing  that  these  conditions  ought  to  be  fair  to  all  parties, 
and  should  not  l^e  altered  by  express  terms  unless  for 
very  cogent  reasons.  The  principal  of  these  implied 
conditions  are,  that  the  vessel  should  be  seaworthy  and 
reasonably  fit  to  carry  the  described  cargo.  There  is  no 
presumption  of  law,  however,  at  least  in  this  country, 
specifying  in  what  cases  the  non-performance  of  the 
contract  should  be  excused.  A  carrier  by  land  is  by  the 
common  law  held  excused  if  he  is  prevented  from  ful- 
filling his  contract  by  certain  dangers.  A  carrier  by  sea 
is  not  so  protected.  It  is  absolutely  necessary,  therefore, 
that  the  perils  intended  to  be  excepted  should  be  fully  set 
down  in  the  charter-party  and  bill  of  lading.  The  diffi- 
culty of  deciding  what  these  excepted  perils  should  be 
was  not  great  in  times  gone  by.  Superior  force,  whether 
of  the  elements  or  by  human  agency,  has  always  been 
considered  valid  excuse  for  the  non-performance  of  the 
contract.  Gradually  a  great  number  of  other  exceptions 
came  to  be  inserted  from  time  to  time,  and  of  recent  years 
shipowners  have  made,  as  has  been  seen,  strenuous  efforts 
to  liave  excepted  all  acts  of  negligence  of  the  persons 
placed  in  charge  of  their  vessels.  Why  this  contention 
has  arisen  is  not  difficult  to  trace.  The  adoption  of  steam 
has  created  a  revolution  in  the  carrying  trade  in  more  ways 
than  one.  The  business  is  now  done  with  so  much  greater 
expedition,  and  is  so  much  greater  in  extent  than  in  the 
old  sailing  limes,  that  owners  caiuiot  give  the  jiersonal 
superN'ision  which  they  used  ;  accidents  and  losses  are 
much  mor(t  IVecjuent,  especially  by  negligence  causing 
collisions  and  strandings ;  competition  is  greater,  and 
jirofils  are  smaller.  Ovvncis  (hcrofore  feel  the  liability 
for  IJK^ir  servants'  nculiucncc   lo  a  niucli  irreater  extent 


INTEUNxVTIONAL   LAW   OF   AFFREIGHTMENT.  oil 

than  in  times  gone  by.  They  may  be  protected  by  in- 
surance, l)ut  this  does  not,  on  the  whole,  diminish  their 
rehictancc  to  lace  the  liability,  for  it  means  enhanced 
premiums. 

On  the  other  hand,  the  owners  of  the  cargo  and  their 
respective  underwriters  object,  and  liave  good  cause  for 
objecting,  to  the  insertion  of  the  negligence  clause.  If 
anyone  can  diminish  the  risk  of  loss  by  negligence,  it  is 
the  shipowner,  and  no  one  else.  He  is  the  employer,  and 
holds  the  power  of  dismissal,  and  this  power  alone  can 
have  any  weight  in  checking  neglect  of  duty  on  the  part 
of  the  officers  and  crew.  The  cargo-owner  is  helpless. 
Once  his  goods  shipped,  he  has  lost  control  over  them, 
and  he  never  has  any  influence  to  bring  to  bear  upon 
those  on  board  the  ship.  Ilis  opinion — and  it  seems  mani- 
festly a  fair  view  to  take — is  that  where  the  power  to 
check  negligence  is,  there  should  be  the  responsibility,  if 
notwithstanding  loss  by  negligence  does  occur.  This 
argument  has  never  been  fairly  refuted  by  the  ship- 
owners. Their  case,  put  in  plain  words,  is  that  they  are 
not  bound  to  accept  the  liability  unless  they  like ;  they 
do  not  like,  and  the  shipper  may  keep  his  goods,  unless 
he  chooses  to  ship  with  the  negligence  clause  inserted. 

It  may  be  well  to  point  out  that  shipowners  and 
shippers  and  their  representatives  are  not  the  only,  or 
indeed  the  chief  parties  interested  in  this  discussion  ;  the 
public  have  a  serious  stake  in  the  matter.  The  greater 
the  loss  by  negligence,  the  higher  price  will  the  consumer 
liave  to  pay,  and  he  is  entitled  to  say,  and  enforce  his 
opinion  through  the  Legislature,  that  such  course  shaU  be 
adopted  which  naturally  must  most  conduce  to  diminish- 
ing loss  by  negligence  and  its  consequences  to  his  pocket. 
He  has  not  done  so  yet  in  this  country,  but  unless  ship- 
owners  accept   these    natural   demands,  I   shall   not  be 


512  MATIITIME    LEGISLATION. 

surprised  if  he  certainly  will  at  no  distant  time.  Why 
shipowners  should  insist  upon  their  action  in  this  matter 
is  difficult  to  see,  because,  after  all,  as  between  them  and 
the  shippers,  out  of  whom  they  make  their  profits,  the 
whole  difficulty  is  susceptible  of  a  perfectly  easy  solu- 
tion, which  can  be  described  in  one  sentence :  Accept  the 
responsibility  and  adjust  the  freight  in  accordance. 

The  threat  which  the  managers  of  some  of  the  largest 
steamship  companies  have  used,  that  if  the  shippers  and 
their  underwriters  decline  to  consent  to  the  general  demand 
of  the  shipowners  and  accept  their  bills  of  lading  with 
the  negligence  clause,  they  would  force  them  to  insure 
the  cfoods  themselves  against  all  risks,  issuino;  a  document 
which  would  be  both  bill  of  lading  and  policy  of  in- 
surance, might  certainly  obviate  a  part  of  the  difficulty, 
but  only  a  part,  because  there  are  not  very  many  steam- 
ship companies,  as  at  present  constituted,  whose  guaran- 
tees for  the  values  of  all  the  cargoes  they  happened  to 
carry  on  board  of  their  vessels  would  be  readily  taken, 
and  therefore  the  matter  remains  in  statu  quo. 


613 


ni. 

CASE  OF  THE  'MARIE  DE  BRABANT: 

To  the  Right  HonouraUe  Sir  Stafford  H.  Nortiicote,  C.B.,  M.P., 

Prcsideni  of  the  Board  of  Trade. 

Sir, — I  have  the  honour  to  hand  to  you  a  memorial  drawn  up  on 
behalf  of  certain  merchan<-s,  subjects  of  the  kingdom  of  Belgium, 
regarding  a  decision  of  the  Judicial  Committee  of  H.M.  Privy 
Council  in  a  matter  of  appeal  from  the  High  Court  of  Admiralty. 

The  appellants  were  the  owners  of  cargo  on  board  of  a  Belgian 
ship,  which  came  into  collision  with  a  British  ship  on  the  high  seas. 
The  British  ship  was  found  to  blame  for  the  collision,  but  the  redress, 
which  could  be  awarded  to  the  owners  of  the  Belgian  ship  and  her 
cargo,  was  held  by  the  Admiralty  Court  to  be  limited  by  the 
provisions  of  the  54th  section  of  the  Merchant  Shipping  Amendment 
Act  to  the  sum  of  eight  pounds  for  each  ton  of  the  British  ship, 
and  the  Judicial  Committee  of  H.M.  Privy  Council  confirmed  the 
interpretation  which  the  Admiralty  Court  had  given  to  that  statute. 
The  merchants,  on  behalf  of  whom  the  memorial  has  been  pre- 
pared, conceive  that  the  British  tribunal,  in  applying  the  limita- 
tions of  the  British  municipal  law  to  a  case  of  injury  done  by  a 
British  ship  to  a  Belgian  ship  and  cargo  on  the  high  seas,  have  in- 
fringed a  very  important  principle  of  international  maritime  law, 
inasmuch  as  no  treaty  engagement  that  such  limitation  shall  apply 
to  Belgian  ships  in  cases  of  collision  beyond  the  limits  of  British 
jurisdiction  has  been  entered  into  between  Great  Britain  and 
Belgium,  whilst  the  Belgian  tribunals  afford  to  the  owners  of 
British  ships  and  cargoes  in  cases  of  collision  with  Belgian  ships  on 
the  high  seas  as  ample  a  remedy  as  heretofore.  There  is  thus  no 
longer  any  reciprocity  between  the  two  nations  in  respect  of  the 

L  L 


514  MAEITDIE    LEGISLATION. 

redress  which  their  maritime  tribunals  afford  in  cases  of  collision  on 
the  high  seas. 

The  memorial  was  originally  prepared  with  the  design  of  in- 
voldno-  the  diplomatic  intervention  of  the  Belgian  Government 
with  Her  Majesty's  Government  in  the  hope  of  oljtaining  thereby 
some  more  adequate  compensation  for  the  injury  inflicted  upon  the 
Belcrian  merchants  than  that  which  the  decision  of  the  British 
tribunals  has  supplied.  That  design  having  for  various  reasons 
been  abandoned,  I  have  the  honour  to  submit  the  subject-matter 
of  the  memorial  to  the  attention  of  the  President  of  the  Committee 
of  Privy  Council  for  Ti'ade,  in  the  hope  that  the  principles  involved 
in  it  may  be  thoughtfully  weighed  when  the  time  for  the  revision 
of  the  British  Statute  Law  shall  arrive. 

I  have  the  honour  to  be,  Sir, 

Your  obedient  humble  Servant, 

Ernst  Emil  Wendt. 

15  Fenchui'ch  Buildings,  Lou'.lon,  E.G. : 
26  November  1866. 

Memorial  of  J.  F.  Cail,  A.  Halot,  and  Company,  of  Brus- 
sels, Merchants,  and  Others,  the  Owners  of  part  of  the 
Cargo  laden  on  board  the  Belgian  Steamship  '  Marie  de 
Brabant.' 

Your  memorialists  are  Belgian  subjects,  owners  of  merchandise 
laden  on  board  the  Belgian  screw  steamship  '  Marie  de  Brabant,' 
which  sailed  from  Antwerp,  bound  to  different  ports  in  the  Medi- 
terranean and  Black  Seas,  in  the  month  of  April  1863.  The 
Belgian  ship  was  pursuing  her  voyage  in  the  Mediterranean  Sea 
on  May  15,  18G3,  when  at  about  2.30  a.m.  she  was  run  into  by 
the  British  screw  steamship  '  Amalia,'  and  was,  with  all  her  cargo, 
totally  lost.  The  British  ship,  at  the  time  of  the  collision,  was 
bound  for  the  port  of  Liverpool,  Avhere  she  arrived  on  May  26, 
1863  ;  and  on  June  8  following  an  action  in  rem  against  the 
British  ship  was  instituted  by  your  memorialists  in  the  High 
Court  of  Admiralty  of  England. 

The  Judge,  assisted  by  Trinity  Master.'!,  heard  the  cause  on  Au-. 
gust  5, 1863,  and  pronounced  the  J^ritisli  shii)  to  bo  solely  to  blame. 


CASE   OF   THE   'MARIE   DE   BRABANT.'  515 

There  were  other  actions  brought  at  the  same  time  against  the 
British  ship  on  behalf  of  the  owners  of  the  Belgian  ship,  and  also 
on  behalf  of  the  owners  of  other  portions  of  the  cargo  lost  on  board 
her,  and  the  Judge  of  the  Admiralty  Court  heard  and  decided  all 
the  actions  at  the  same  time. 

Your  memorialists  are  perfectly  satisfied  with  the  decision  of 
the  High  Court  of  Admiralty  of  England  in  respect  of  the  blame 
of  the  collision,  but  they  find  themselves  aggrieved  by  reason  of 
the  benefit  which  they  would  have  derived  b}''  proceeding  against 
the  British  ship  in  a  Belgian  Court  exercising  Admiralty  jurisdic- 
tion. It  has  always  been  regarded  as  one  of  the  advantages  of 
proceeding  in  rem  in  the  Admiralty,  that  a  foreign  plaintiff,  in 
whatever  country  the  Admiralty  jurisdiction  is  exercised,  will  be 
entitled  to  the  benefit  of  the  same  marine  laws  which  would  be 
administered  to  him  in  his  own  country.  Sir  Leoline  Jenkins, 
one  of  the  highest  of  British  authorities  on  matters  of  maritime 
law,  in  reporting  to  the  Crown,  that  the  owners  of  a  French  ship 
might  have  justice  done  to  them  in  the  Admiralty  Court  of 
England,  observes :  '  Having  the  authority  of  two  such  eminent 
persons  in  the  law  (the  Attorney-General  and  the  Solicitor- 
General)  that  this  cause  of  spoil  is  cognisable  in  the  Admiralty,  I 
will  only  add  besides,  that  it  has  been  always  so  till  some  late  in- 
terruptions, and  it  is  not  without  special  satisfaction  to  a  foreign 
plaintiff  that  he  shall  have  the  benefit  of  the  same  marine  laws 
here  that  we  are  judged  by  in  his  country  '  ('  Life  of  Sir  Leoline 
Jenkins,'  vol.  ii.  p.  7G4). 

Your  memorialists  submit  that  in  the  proceedings  instituted  by 
them  against  the  British  ship  in  the  High  Court  of  Admiralty  of 
England  they  have  not  had  the  benefit  of  the  same  marine  law 
in  respect  of  compensation  for  the  damage  caused  to  them  by  the 
wrongful  navigation  of  the  British  ship  as  would  have  been  ad- 
ministered to  them  in  their  own  country  if  the  British  ship  had 
come  Avithin  the  jurisdiction  of  the  Belgian  Crown,  and  as  would 
have  been  administered  to  the  owners  of  the  British  ship  if  they 
had  proceeded  in  a  cause  of  collision  against  a  Belgian  ship  in  a 
Belgian  Court  exercising  Admiralty  jurisdiction. 

Your   memorialists  submit  that  it   is  a  maxim   of  Admiralty 

I.  L  2 


516  MARITDIE   LEGISLATION. 

law  that  delictum  in  respect  of  a  collision  between  two  sLips  on 
the  hiffh  seas  gives  rise  to  a  maritime  lien,  which  travels  with  the 
wrong-doing  ship  into  whosoever  possession  it  may  pass.     This 
doctrine  was  fully  recognised  by  the  Judicial  Committee  of  Her 
Majesty's   Privy   Council  in    the   case  of  the   '  Bold  Buccleugh ' 
(Moore's  Privy  Council  Reports,  vii.  p.  284).     This  maritime  lien 
is  the  foundation  of  a  right  of  action   against  the  wrong-doing 
ship  in  all  Admiralty  Courts  ;  the  action  in  rem  being  a  proceeding 
which  the  Admiralty  jurisdiction  has  inherited  from  the  jurispru- 
dence of  ancient  Rome,  which,  when  it  authorised  an  injured  party 
to  proceed  by  way  of  arrest  against  the  thing  itself  which  had 
clone  the  damage,  instead  of  proceeding  against  the  owners  of  the 
thing  by  citing  them  personally,  made  the  res  itself  liable  to  the 
full  extent  of  its  value  to  make  good  the  plaintiff's  damage.     This 
measure  of  compensation,  which  is  the  peculiar  feature  of  the  pro- 
ceeding in  rem  under  the  Roman  law,  has  been  found  by  experience 
to  be  so  consistent  with  equity  and  public  policy  as  regards  the 
navio-ation  of  ships,  that  it  has  been  incorporated  by  the  Legisla- 
tures of  most  European  nations  into  their  municipal  codes  as  a 
governing  rule  for  the  Courts  which  administer  their  territorial  law  in 
regard  to  the  personal  wrongs  of  their  subjects,  whatever  may  be 
the  locus  delicti  as  distinguished  from  the  common  law  of  nations 
in  regard  to  maritime  torts  on  the  high  seas.     The  result  of  this 
positive  legislation  has  been  that,  until  the  judgment  recently  de- 
livered by  the  High  Court  of  Admiralty  of  England  upon  the 
claim  of  your  memorialists,  the  same  measure  of  compensation  in 
causes  of  damage  on  the  high  seas  has  been  administered  in  the 
municipal  courts  both  of  Great  Britain  and  of  Belgium,  and   in 
the  Admiralty  Court  of  each  country.     It  is  submitted,  however, 
by  your  memorialists  that  the  foundation  upon  which  the  practice 
of  the  Admiralty  Court  in  either  country  rests  is  different  from 
that  upon  which  the  practice  of  the   nuinicipal  courts  proceeds, 
and  that  whilst  the  latter  is  the  creation  of  the  territorial  legisla- 
ture   and   may  be  varied  at  its  pleasure,  the  former  can  only  be 
.subject  to  regulations  which  an^  consistent  with  the  law  of  nations. 
Your  niemorialisis  have  on  this  head  the  support  of  the  liiy-h 
autlioril  V  of   L'ln]   Stovvll    ;iihI    Sir -Inlin    Niclioll.  who  declined  to 


CASE   OF  THE    'MARIE   DE   BRABANT.'  517 

apply  the  municipal  law  of  Great  Britain  on  occasions  when  it  was 
sought  to  invoke  it  into  the  Admiralty  Court  as  the  governing  rule 
for  measuring  the  compensation  to  be  awarded  for  damage  in  suits 
between  British  and  foreign  vessels  ;  Lord  Stowell  was  called  upon 
to  apply  the  rule  of  the  British  statute  (53  Geo.  Ill,  c.  159,  s.  1), 
which  limits  the  responsibility  of  the  owners  of  ships  to  the  value 
of  the  ship  and  its  freight,  in  the  case  of  the  '  Carl  Johan,'  a 
Swedish  vessel,  which  had  been  in  collision  on  the  high  seas  with 
the  '  Edward,'  a  British  vessel ;  but  he  refused,  saying  that  the 
British  statute  was  one  of  domestic  policy,  and  that  with  reference  to 
foreign  vessels  it  only  applied  to  cases  where  the  advantages  and 
disadvantages  of  such  a  rule  were  common  to  them  and  to  British 
vessels  ;  that  if  all  States  adopted  the  same  rule  there  would  be  no 
difficulty,  but  that  no  such  general  rule  was  alleged,  and  that  if 
the  law  of  Sweden  adopted  such  a  rule  it  would  apply  to  both 
countries,  but  that  Sweden  could  not  claim  the  protection  of  the 
statute  without  affording  a  similar  protection  to  British  subjects  in 
similar  cases.  Sir  John  Nicholl,  in  quoting  this  judgment  of  Lord 
Stowell,  and  commenting  upon  it,  in  the  case  of  the  '  Girolamo ' 
(3  Haggard's  Admiralty  Reports,  J 87),  observed  that — 'Lord 
Stowell's  judgment  appears  to  be  a  direct  authority  that  these 
acts,  however  binding  on  the  municipal  courts,  nay,  possibly,  even 
on  the  Admiralty  Court  as  between  subject  and  subject,  yet  cannot 
be  set  up  by  a  foreign  ship  in  the  Admiralty  jurisdiction  ; '  and  in 
an  earlier  part  of  the  same  case  (p.  184),  the  same  learned  Judge 
explains  the  principle  upon  which  his  view  proceeds,  remarking 
that — 'There  is  another  ingredient  of  some  importance  in  this 
case,  this  defence  (namely,  the  statutory  limitation  of  responsibility) 
is  set  up  by  a  foreign  owner  in  behalf  of  a  foreign  ship  in  a  Court 
governed  by  the  principles  of  international  law,  and  a  question 
arises  whether  a  foreigner  can  in  a  suit  in  this  Court  set  up  as  a 
defence  a  municipal  law  made  to  regulate  municipal  courts  only, 
and  contrary  to  those  general  rules  of  law  which  prevail  amongst 
commercial  nations.  Reciprocity  or  mutuality  has  always  been 
considered  as  one  of  the  leading  principles  of  justice  in  questions 
arising  between  nation  and  nation.  For  example,  by  our  municipal 
law  this  country  established  the  principle  of  restitution  upon  pay- 


518  MARITIME   LEGISLATION. 

nieiit  of  salvage  in  cases  of  recapture  of  British  property  from  the 
enemy  notwithstanding  pernodacio  infra  p-cesidia  or  any  of  those 
old  general  rules  by  which  the  property  of  the  former  owners  was 
held  to  be  extinguished,  but  the  application  of  this  rule  to  the 
property  even  of  our  allies  in  the  late  war  was  held  to  de- 
pend entirely  upon  its  reciprocity.  Thus,  in  the  case  of  the  '  St. 
lago '  (cited  in  the  '  Santa  Cruz,'  1  Chr.  Rob.  p.  63)  the  property 
was  adjudged  as  prize  to  the  recaptors  on  the  ground  of  its  not 
being  shown  that  restitution  of  the  property  of  an  ally  upon  pay- 
ment of  salvage  was  the  rule  of  the  Spanish  law ;  and  in  the 
case  of  the  'Santa  Cruz'  itself,  the  same  principle  was  applied 
with  respect  to  Portugal,  but  upon  the  country  afterwards  en- 
gaging prospectively  to  restore  upon  payment  of  salvage  British 
property  recaptured  by  Portuguese  subjects,  the  rule  was  made 
mutual. 

Your  memorialists  submit  that  the  reciprocity  which  Lord 
Stowell  and  Sir  John  Nicholl  require  as  an  essential  condition  to 
authorise  a  Court  of  International  Law  to  apply  a  positive  rule 
enacted  by  the  Legislature  of  the  State  in  which  the  Court  sits  to 
the  subjects  of  another  State,  does  not  exist  unless  the  Courts  of 
the  other  State  apply  the  same  rule  in  analogous  cases  which  come 
before  them  ;  in  other  words,  the  Courts  of  each  State  must  be 
authorised  and  allowed  by  their  respective  Legislatures  to  apply  one 
and  the  same  rule  ;  but  the  learned  Judge  of  the  High  Court  of 
Admiralty,  in  dealing  with  the  claim  of  your  memorialists,  has 
proceeded  upon  a  different  view  of  the  principle  of  reciprocity  when 
he  says  that — 'If  the  statute  in  question  (25  &  26  Vict.  cap.  10) 
gives  the  right  of  limited  liability  to  the  British  shipowner  and 
the  foreign  shipowner  alike,  if  there  be  perfect  reciprocity,  then 
complete  justice  is  done,  and  the  former  objection,  that  it  Avas  un- 
just to  give  relief  to  the  British  owner  when  a  similar  relief  was 
denied  to  tlie  foreigner,  is  removed.'  Your  memorialists  submit 
Ihat  Lord  Stowell  and  Sir  John  Nicholl  did  not  hold  themselves 
precluded  by  the  language  of  tlie  British  statute  from  giving  the 
same  relief  to  both  British  and  foreign  sliipowners  alike,  but  they 
dcclinod  to  extend  to  Swedish  shipowners  the  relief  which  was  given 
ti)  all  shipowners  in  general  words  by  the  statute,  because  there  was 


CASE   OF   THE    '  MAUIE    1)E   BRABANT/  510 

no  reciprocity  in  such  matters  between  Great  Britain  and  Sweden ;  in 
other  words,  because  a  different  rule  prevailed  in  tho  Swedish  Courts. 

The  mode  in  which  the  learned  Judge  of  the  High  Court  of 
Admiralty  came  to  apply  the  Biitish  statute  to  the  claims  of  your 
memorialists  may  be  thus  brietiy  stated  : — 

The  owners  of  the  British  ship,  the  defendants,  immediately 
upon  the  plaintiffs  instituting  their  action  in  rem  against  the  ship; 
under  the  Admiralty  law,  instituted  a  suit  against  the  plaintiffs 
personalli/  in  tho  Admiralty  Court,  under  the  provisions  of  two 
British  statutes.  One  of  these  statutes  (24  Vict.  c.  10)  was  passed 
in  18G1,  and  enacted,  that  whenever  any  ship  is  under  arrest  of  the 
High  Court  of  Admiralty,  the  said  Court  shall  have  the  same  powers 
as  are  conferred  upon  the  High  Court  of  Chancery  in  England  by 
the  ninth  part  of  the  Merchant  Shipping  Act,  1854.  It  may  be 
observed  that  the  ninth  part  of  the  Merchant  Shipping  Act  had 
been  held  by  the  learned  Judge,  up  to  the  passing  of  24  Vict.  c.  10, 
to  apply  only  to  British  ships. 

The  other  statute  (25  &  2G  Vict.  c.  10),  entitled  the  '  Merchant 
Shipping  Act  Amendment  Act,  1862,'  has  enacted  that '  the  owners  of 
any  ship,  whether  British  or  foreign,  shall  not  in  cases  where  with- 
out  their  actual  fault  or  knowledge  any  loss  or  damage  is  by  reason 
of  the  improper  navigation  of  such  ship  caused  to  any  other  ship 
or  boat,  or  to  any  goods,  merchandise,  or  other  things  whatever,  on 
board  any  other  ship  or  boat,  be  answerable  in  damages  to  an 
aggregate  amount  exceeding  eight  pounds  for  each  ton  of  the  ship's 
tonnage.' 

The  learned  Judge  of  the  High  Court  of  Admiralty  held  that 
he  was  bound  to  apply  the  provisions  of  this  British  statute  to  the 
claim  of  your  memorialists,  although  the  cause  of  action  did  not 
arise  in  British  waters,  and  to  hold  that  your  memorialists  were 
not  entitled  to  compensation  up  to  the  value  of  the  res  itself,  but 
only  up  to  the  arbitrary  limit  of  eight  pounds  per  ton  of  the  tonnage 
of  the  British  ship. 

Your  memorialists  have  been  led  to  believe,  from  stiulying  the 
course  of  decisions  in  the  High  Court  of  Admiralty  of  England, 
that  it  was  an  axiom  of  international  law  recognised  by  those 
Courts  that  no  State  has  authority  to  bind  by  its  territorial  law 


550  MARITIME   LEGISLATION. 

any  but  its  own  members  or  such  members  of  other  States  as  are 
within  its  territory,  and  that  it  was  a  principle  of  international 
jurisprudence  admitted  by  those  Courts,  that  Courts  administering 
the  law  of  nations  are  bound  so  to  narrow  the  interpretation  of  the 
general  language  of  municipal  statutes  as  to  keep  them  in  harmony 
with  the  law  of  nations.  Lord  Stowell  has  affirmed  this  principle 
in  the  case  of  '  Le  Louis '  (2  Dodson,  239),  when  he  says  that 
'  neither  a  British  Act  of  Parliament  nor  any  Commission  founded 
on  it  can  affect  any  right  or  interest  of  foreigners,  unless  they  are 
founded  upon  principles  and  impose  regulations  which  are  con- 
sistent with  the  law  of  nations.  That  is  the  only  law  which  Great 
Britain  can  apply  to  them,  and  the  generality  of  any  terms  em- 
ployed in  an  Act  of  Parliament  must  be  narrowed  in  construction 
by  a  religious  adherence  thereto.' 

Your  memorialists  submit  that  when  the  owner  of  an  American 
ship,  the  '  Wild  Ranger,'  which  had  been  arrested  in  a  cause  of 
collision  in  the  Admiralty  Court  by  the  owner  of  a  British  vessel, 
filed  a  petition  under  24  Vict.  c.  10,  s.  13,  for  a  declaration  of 
limited  liability  in  its  favour  under  the  provisions  of  the  Merchant 
Shipping  Act,  1854,  the  learned  Judge  of  the  High  Court  of 
Admiralty  held  that  the  American  defendant  was  not  within  the 
beneficial  operations  of  the  Merchant  Shipping  Act,  1854,  s.  504, 
although  the  language  of  the  section  is  most  general,  viz.  'JVo 
oirner  of  any  sea-going  .s/np,  where  any  loss  or  damage  is  by  reason 
of  the  improper  navigation  of  such  ship  without  his  actual  fault  or 
privity  caused  to  any  other  ship  or  boat,  or  to  any  goods,  merchan- 
dise, or  other  things  whatsoever,  on  board  any  other  ship  or  boat, 
shall  be  answerable  in  damages  beyond  the  value  of  his  ship  and 
the  freight.'  The  collision  in  the  case  of  this  American  ship  had 
occurred  on  the  high  seas,  and  the  American  shipowner  claimed 
the  benefit  of  the  statute  as  being  the  lex  fori  on  the  principle  that 
the  lex  fori  is  a  conclusive  rule  in  all  questions  of  remcdg.  But 
the  learned  Judge  of  the  High  Court  of  Admiralty  held  that  the 
Court  of  Chancery  had  rightly  decided  in  the  case  of  Cope  v.  Doherty 
(2  Dc  Gex  &  Jones,  614)  that  the  British  statute  giving  limited 
liability  did  not  apply  to  foreign  shij)s  on  the  high  seas,  and 
tli.it  it    made   no   difference  in   the   construction    of  the   statute 


CASE  OF  THE   '  MARIE   1)E   BRABANT.'  521 

whether  the  foreign  ship  came  into  collision  with  another  foreign 
ship,  as  in  Cope  v.  Doherty,  or  with  a  British  ship,  and  the  learned 
Judge  went  on  to  cite  a  passage  from  the  decision  of  Vice-Chan- 
cellor  Wood  in  the  General  Iron  Screw  Collier  Company  v.  Schur- 
manns  (1  Johnson  &  Hemming,  193)  in  the  following  words :  '  I 
adhere  to  the  opinion  which  I  expressed  in  Cope  v.  Doherty,  that  a 
foreign  ship  meeting  a  British  ship  on  the  open  ocean  cannot  be 
abridged  of  any  of  her  rights  by  any  Act  of  the  British  Legis- 
lature.' 

The  learned  Judge  of  the  High  Court  of  Admiralty  on  this 
occasion  held  himself  bound  to  put  the  same  construction  on  the 
British  statute  in  regard  to  limited  liability  as  the  Court  of 
Chancery  had  done,  and  declined  to  apply  it  to  the  owners  of 
foreign  ships  which  came  into  collision  with  British  ships  on  the 
high  seas. 

The  same  learned  Judge,  in  deciding  upon  the  claims  of  your 
memorialists,  has  held  that  he  was  bound  to  draw  a  substantial 
distinction  between  the  words  of  the  Merchant  Shipping  Act, 
1854,  which  says  that  ^710  owner  of  anij  sea-going  sJdp  shall  be 
ansiverahle  in  damages,'  and  the  words  of  the  Merchant  Shipping 
Act  Amendment  Act,  1862,  which  says  that '  the  oivners  of  any  shipj 
ivhether  British  or  foreign,  shall  not  he  ansvxrahle  in  damages.' 

In  construing  the  latter  section  he  says :  '  I  must  look  to  see 
whether  it  purports  to  affect  the  owners  of  British  ships  and  the 
owners  of  foreign  ships,  and  if  I  find  from  the  words  of  the  section 
and  from  the  whole  context  and  subject-matter  that  it  was  the  in- 
tention of  the  statute  to  make  limited  liability  for  both  British 
and  foreign  ships,  then  I  consider  there  is  no  serious  objection  to 
the  British  Parliament  legislating  for  foreigners  '  (Moore's  Privy 
Council  Reports,  N.S.  i.  475). 

Your  memorialists,  however,  submit  that  the  fact  of  the  British 
Parliament  having  legislated  for  foreigners  does  not  of  itself  remove 
all  serious  objections  to  its  so  doing,  or  establish  its  right  to  do  so 
in  matters  in  which  the  subjects  of  foreign  States  are  not  subject 
to  British  jurisdiction,  and  that  the  general  language  of  a  British 
statute  is  not  sufficient  to  warrant  the  Admiralty  Court  in  applying 
it  to  foreigners,  unless  the  place  in  which  the  cause  of  action  arose 


522  MARITIME   LEGISLATION. 

was  subject  to  Britisli  jurisdiction.  Thus  the  very  words  of  the 
Merchant  Shipping  Act  Amendment  Act,  1854,  which  the  learned 
Judge  of  the  High  Court  of  Admiralty  distinguishes  from  the 
words  of  the  Merchant  Shipping  Act  Amendment  Act,  18G2,  were 
held  by  Vice-Chancellor  Wood,  in  the  case  of  the  General  Iron 
Screw  Collier  Company  v.  Schurmanns,  '  to  be  applicable  to 
foreigners  where  such  foreigners  were  witliin  British  jurisdiction^ 
and  he  applied  the  principle  of  limited  liability,  as  enacted  by  the 
general  words  of  the  Act  of  1854,  to  the  case  of  a  British  ship 
which  had  damaged  a  foreign  ship  by  collision  happening  within 
three  miles  from  the  shore  of  the  United  Kingdom,  seeing  that 
the  place  where  the  cause  of  action  arose  was  witliin  British  juris- 
diction. This  decision  of  the  Vice-Chancellor  is  referred  to  in 
the  judgment  of  the  Privy  Council  upon  your  memorialists' 
appeal. 

Your  memorialists  submit  that,  having  exhausted  the  ordinary 
means  of  redress  which  were  open  to  them,  by  instituting  pro- 
ceedings in  the  High  Court  of  Admiralty  of  England,  and  by 
appeal  to  the  Judicial  Committee  of  Her  Majesty's  Privy  Council, 
and  having  been  deprived  by  an  interpretation  which  those  Courts 
have  concurred  in  giving  to  the  municipal  law  of  Great  Britain,  of 
the  full  benefit  of  the  maritime  lien,  to  which  they  were  entitled 
under  the  law  of  nations,  they  may  with  reason  apply  to  Her 
iSIajesty's  Government  to  make  good  to  them  their  loss,  seeing  that 
Her  Majesty's  Courts  afford  them  no  means  of  obtaining  compensa- 
tion to  which  they  are  entitled  under  the  law  of  nations  for  the 
injurious  conduct  of  Her  Majesty's  subjects  in  running  down 
the  Belgian  ship  and  sinking  their  merchandise  on  the  high  seas. 

Your  memorialists  submit  that  the  value  of  their  merchandise 
lost  on  board  the  Belgian  ship,  in  consequence  of  the  wrongful  act 
of  Her  Majesty's  subjects  on  the  high  seas,  is  17,762^,  7s.  4d., 
whilst  they  Tiave  only  been  allowed  to  recover  in  the  Admiralty 
Court  the  sum  of  G,757^.  8s.  'Sd.,  being  their  proportion  of  the 
statutory  value  of  the  British  ship,  and  that  whilst  that  statutory 
value  has  been  calculated  at  the  rate  of  8/.  per  ton,  and  no  more, 
under  the  Merchant  Siiippi ng  Amendment  Act,  18G2,  the  real 
valtio  of  the  British  ship  would  have  been  estimated  in  the  market 


CASE   OF   THE    '  MARIE    DE   BRABANT.'  523 

at  about  30Z.  per  ton,   to  the  full  benefit  of  which   value  your 
memorialists  submit  they  are  entitled  under  the  law  of  nations. 

J.  F.  Cail,  Halot,  &  Co. 

Molenbeck  St.  Jean,  pres  Bruxelles, 

le  neuffevrier  1800  soixanto-six. 

Vu  par  nous,  Bourgmostre  de  la  Commune  de  Molenljeck  Saint- 
Jean,  pour  lei^alisation  de  la  signature  de  MM.  J  F.  Cail, 
Halot,  &  Cie. 

Pr.  le  Bourgmestre, 
L'Eclievin, 

Charles  Piers. 

Molenbeck  St.  Jean,  le  10  fevrier  1866. 

Vu  pour  legalisation  de  la  signature  de  Monsieur 
Charles  Piers,  qualifid  ci-dessus. 
Le  Gouverneur  du  Brabant, 

Dubois  Thorn. 
Bruxelles,  10  fevrier  1866. 

I  certify  the  above  to   be  the  signature  of  Mr.  Dubois  Thorn, 
Governor  of  the  province  of  Brabant,  in  the  Kingdom  of  Belgium. 
Brussels,  this  tenth  day  of  February  18G6. 

Thos.  Jas.  Maltby, 
II.B.M.  Vice-Consitl  at  Brussels. 


Board  of  Trade,  Whitehall : 

December  28,  1866. 

Sir, — I  am  directed  by  the  Board  of  Trade  to  acknowledge  the 
receipt  of  your  letter  of  the  2Gth  ultimo,  forwarding  a  memorial 
from  certain  merchants,  subjects  of  the  kingdom  of  Belgium, 
and  owners  of  part  of  the  cargo  of  the  Belgian  S.S.  '  Marie  de 
Brabant,'  protesting  against  the  decision  of  the  Judicial  Committee 
of  the  Vrivj  Council  in  the  matter  of  appeal  from  the  High  Court  of 
Admiralty,  in  the  case  of  the  collision  between  the  S.S.  'Marie  do 
Brabant,'  and  the  British  S.S.  '  Amalia,'  by  which  the  liability  of 
the  owners  of  the  '  Amalia '  was  held  to  be  limited  to  the  sum  of 
8^  per  ton  upon  the  tonnage  of  the  ship,  under  section  54  of  the 


62*  MARITIME   LEGISLATION. 

Merchant  Shipping  Act  Amendment  Act,  1862,  and  submitting 
whether  the  memorialists  are  not  entitled  under  the  General  Maritime 
Law  to  compensation  for  their  losses  to  the  full  extent  of  the  value  of 
the  '  Amalia,'  which  was  supposed  to  be  about  301.  per  ton,  also 
that  the  above  decision  is  inconsistent  with  previous  decisions 
of  the  Court  of  Admiralty  and  other  British  Courts  in  similar 
cases. 

I  am  to  inform  you  that  the  case  has  received  the  very  careful 
consideration  of  this  Board. 

In  reply,  I  am  to  observe,  in  the  first  place,  that  the  law  under 
which  the  case  in  question  was  decided  is  based  upon  the  principle 
of  complete  reciprocity ;  because,  had  the  claim  been  made  by  the 
owners  of  a  British  ship  or  cargo  against  a  foreign  ship,  the  lia- 
bility of  the  foreign  shipowner  would  be  limited  just  as  much  as  the 
liability  of  a  British  shipowner  is  limited  where  the  claim  is  by 
a  foreigner.  It  appears  further  to  the  Board  of  Trade  that  the 
foreigner  who  comes  into  the  Courts  of  this  country  to  sue  must 
take  the  remedy  as  he  there  finds  it,  and  can  have  no  ground  for 
complaint  if  he  is  treated  in  the  same  manner  in  which  British 
ships  and  British  subjects  are  treated  in  the  same  Courts. 

I  am  to  add  that  the  Board  of  Trade  are  not  aware  that  there  is 
any  uniform  maritime  law  binding  upon  different  nations  by  which 
the  measure  and  limit  of  liability  in  case  of  collisions  on  the  high 
seas  is  determined.  Different  nations  may  and  do  fix  different 
measures  and  limits,  and  all  that  can  be  required  by  principles  of 
reciprocity  is,  that  foreign  shipowners  shall  have  the  same  rights 
and  the  same  limit  of  liability  as  shipowners  belonging  to  this 
country. 

Under  these  circumstances  I  am  to  I'equest  that  you  will  be  so 
good  as  to  inform  the  memorialists  that  whilst  the  Court  of  law  has 
in  the  case  in  question  decided  as  it  was  bound  to  do,  according  to 
tiie  statute  law  of  the  country,  there  is  not,  in  the  opinion  of  the 
Board  of  Trade,  any  reason  to  suppose  that  the  decision  is  incon- 
sistent with  the  principles  of  international  maritime  law. 

I  am,  Sir,  your  obedient  Servant, 

T.  11.  Farker. 
E.  E.  WeiuU,  Esq. 


CASE  OF  THE   ^  MARIE   DE  BRABANT.'  S25 

The  Secretary,  Board  of  Trade,  WJiitehall,  S.  W. 

8ir, — I  am  favoured  with  your  communication  of  the  28th 
instant,  and  take  the  earliest  opportunity  of  expressing  my  grateful 
thanks  to  my  Lords  for  the  careful  consideration  which  you  infoi-m 
me  has  been  given  to  the  memorial  laid  before  them  by  me  in  the 
case  of  the  '  Marie  de  Brabant,'  and  being  thoroughly  convinced 
that  a  reconsideration  of  the  matter  would  very  materially  alter  the 
views  by  which  the  revision  of  the  Merchant  Shipping  Act  will 
be  influenced,  I  feel  it  my  duty,  in  a  few  words,  to  express  my 
regret  that  the  Board  of  Trade  should  have  thought  it  necessary 
to  proclaim  so  decidedly  their  adherence  to  the  principles  laid 
down  by  the  judicial  authorities  before  whom  the  case  was  heard ; 
and  also  to  point  out  how  those  principles,  and  the  arguments  by 
which  they  are  supported,  appear  to  me  to  be  faulty  and  untenable. 

The  whole  point  at  issue  seems  to  rest  upon  the  true  meaning 
of  the  word  '  reciprocity,'  for  Dr.  Lushington  in  his  judgment 
says :  '  If  the  statute  in  question  gives  the  right  of  limited  liability 
to  the  British  shipowner  and  the  foreign  shipowner  alike,  if  there 
be  perfect  reciprocity,  then  complete  justice  is  done,'  while  the 
Board  of  Trade  now  adopt  the  same  mode  of  expression,  and  say 
that  the  law  in  question  '  is  based  upon  the  principle  of  complete 
reciprocity,'  because  a  British  and  a  foreign  ship  would,  in  our 
Courts,  be  treated  alike. 

Now,  I  venture  to  refer  to  the  dictionaries  for  the  exact 
meaning  of  the  word  '  reciprocity,'  and  I  find  Johnson  defines  it 
as  a  '  reciprocal  obligation,'  while  '  reciprocal '  he  holds  to  mean, 
*  acting  in  vicissitude — mutual — done  by  each  to  each — mutually 
interchangable.'  Webster  defines  the  word  '  reciprocity '  to  be 
'  mutual  action  and  reaction,'  The  meaning  which  I  claim  for  the 
jexpression  is  quite  in  accordance  with  these  authorities,  and  I 
venture  to  submit  that  it  cannot  properly  be  narrowed  into  a 
synonym  for  *  similarity  or  impartiality,'  as  has  been  done  in  the 
case  in  question. 

By  way  of  illustration,  I  will  assume  A  and  B  to  be  the  British 
and  Belgian  Legislatures  respectively  ;  C  to  be  a  British,  and  D  a 
Belgian  shipowner.     ]\[y  contention  is,  that  the  Courts  of  A"  should 


526  MARITIME   LEGISLATION. 

give  to  D  the  same  relief  as,  cccteris  iKvnhus,  B  would  give  to  C, 
and  vice  versa  ;  in  other  words,  C  and  D  should  know  that,  whether 
they  apply  to  A  or  B,  the  same  justice  would  be  done  them  ;  this 
is  complete  reciprocity.  The  narrower  view  is,  that  all  obligations 
have  been  fulfilled  if  A  treats  C  and  D  alike,  leaving  B  out  of  the 
question  altogether ;  this  is  impartiality.  The  former  is  the 
proper  basis  of  International  Law ;  the  latter  of  the  more  narrow 
municipal  legislation. 

The  further  argument  that  a  foreigner  coming  to  our  Courts  to 
sue  must  take  the  same  remedy  as  we  give  to  our  own  ships  may, 
I  think,  be  disposed  of  in  a  few  words.  For  this  purpose  it  is  only 
necessary  to  point  out  that  proceedings  for  damage  must,  in  a  ma- 
jority of  cases,  be  taken  before  the  Courts  of  the  country  to  which 
the  wrong-doer  belongs.  The  owner  of  a  British  ship  sunk  on  the 
high  seas  by  the  default  of  a  Belgian  would  not  be  likely  to  wait 
until  he  might  happen  to  find  the  Belgian  ship  in  one  of  our  own 
ports,  but  would  at  once  go  to  Belgium  to  claim  redress.  The 
effect  of  the  recent  decisions  is,  therefore,  to  give  immunity  to  our 
own  subject  when  he  is  the  wrong- doer,  leaving  him  to  obtain  his 
remedy  in  full  in  a  foreign  Court,  when  he  is  in  the  right ! 

In  conclusion,  as  by  the  comity  of  nations  certain  principles  of 
International  Law  have  been  generally  adopted  and  adhered  to,  so 
the  principle  first  established,  as  I  am  advised,  by  the  Code  de 
Commerce,  was  almost  universally  adhered  to,  viz.  that  the  damage 
caused  should  be  made  good  by  the  wrong-doing  ship  and  freight 
as  far  as  their  value  went ;  and  this  became,  therefore,  a  funda- 
mental principle  of  General  Maritime  Law,  not  adopted  by  treaty 
obligations,  but  by  the  uniform  decisions  of  the  Courts  of  those 
countries  whose  subjects  were  mostly  interested  in  maritime  inter- 
course, viz.  France,  the  United  States,  and  Great  Britain,  and  so 
remained  until  our  legislation  of  1862. — 1  have  the  honour  to  be, 

(Sir, 

Your  most  obedient  Servant, 

E.  E.  Wendt. 

15  Fenclmrch  Buildings  :  December  31,  1806. 


IV. 
OBSERVATIONS  ON 

17  &  18  Vict.  cap.  104.     Tlie  Mercliant  Shipping  Act, 
1854. 

17  &  18  Vict.  cap.  120.     The  Merchant  Shipping  Repeal 

Act,  1854. 

18  &  19  Vict.   cap.   91.     The   Merchant   Shipping   Act 

Amendment  Act,  1855. 
25  &  26  Vict.  cap.   63.     The   Merchant   Shipping   Act 
Amendment  Act,  1862. 

15  Fenchurch  Buildings, 

London :  December  1866. 

Intkoductory   Remarks. 

It  is  impossible  to  deny  that  tlie  issuing  of  the  Merchant 
Shipping  Act  (17  &  18  Vict.  cap.  104),  1854,  was  in  so 
far  a  complete  success,  as  it  not  only  brought  into  opera- 
tion very  useful  enactments  on  matters  connected  with 
the  Maritime  Law  of  the  country,  which  had  been  pre- 
viously entirely  neglected  by  the  Legislature,  but  has 
proved  beyond  doubt  that  when  in  course  of  time  this 
Principal  Act  with  its  Repeal  Act  (17  &  18  Vict.  cap. 
120),  1854,  and  its  Amendment  Acts  (18  &  19  Vict.  cap. 
91),  1855,  and  (25  &  26  Vict.  cap.  63),  1862,  should  have 
been  properly  revised,  so  complete  and  efficient  a  codiH- 
cation  could  be  arrived  at  that  even  foreign  Governments 
would  acknowledge  its  usefulness,  and  would  not  be  slow 
in  adopting  it  without  much  diplomatic  interference ;  by 


628  MARITIME  LEGISLATION. 

this  hitlierto  unusual  but  certain  jirocess  the  chances  are 
not  very  remote  that  the  Legislature  of  our  country  may 
be  able  to  lay  the  foundation  of  what  is  acknowledged  to 
be  o"enerally  wanting — a  Codification  of  International  and 
General  Maritime  Law. 

No  power  is  so  well  able  to  take  the  initiative  in  so 
noble  a  design  as  Great  Britain,  but  I  admit  the  difficulties 
can  only  be  overpowered  by  doing  justice  to  all  acknow- 
ledged international  principles,  and  by  not  attempting  to 
particularise  too  much. 

The  more  general  the  views  taken  in  fixing  upon  prin- 
ciples, the  greater  the  chances  of  our  final  success. 

The  following  observations  have  been  prepared  with 
the  intention  that  whenever  the  Board  of  Trade  should 
think  the  time  arrived  for  a  proper  revision  of  the  above 
Acts — which  I  sincerely  hope  is  not  far  distant — they 
may  be  considered  as  suggestions  of  a  mind  for  thirty 
years  practically  engaged  in  treating  matters  of  Liter- 
national  and  General  Maritime  Law. 

That  one  complete  Act  would  generally  be  preferred 
to  another  Amendment  Act  I  ought  not  to  omit  to  state, 
and,  although  enactments  as  to  the  Law  of  General 
AverafTe,  of  Freight,  of  Bottomry,  and  of  Marine  Lisurance 
would  be  very  desirable  indeed,  I  w^ould  rather  recom- 
mend the  postponement  of  legislation  on  the  two  last 
subjects.  Bottomry  and  Marine  Lisurance,  than  see  further 
delayed  what  may  l)e  called  the  issue  of  the  first  or  prin- 
cipal Code  on  matters  of  General  Maritime  Law. 

The  embodying  into  the  new  Maritime  Law  of  the 
International  General  Average  Eules  (framed  at  York  in 
18G4,  under  the  auspices  of  the  late  Lord  Chief  Baron, 
Sir  Fitzroy  Kelly,  and  of  Lord  rcn/ance)  and  the  Tnter- 
ii:ilioii;il  I/iw  of  Ani-cighlniciil  (fV;iincd  at  Shefiield  i?i  ISGT), 


MERCHANT   SHIPPING   ACT,   1854.  529 

midcr  the  auspices  of  the  then  Queen's  Advocate,  Sir 
liobert  Philiiniore  ^)  would  undoubtedly  be  very  accept- 
able to  the  mercantile  community  in  general. 

How  far  an  alteration  in  tlie  present  system  of  stating 
averages  could  improve  its  efTiciency  by  establishing  a 
state  of  things  similar  to  that  in  practice  on  the  Continent 
will  have  to  be  very  carefully  considered. 

I  think  it  wonld  not  be  dillicult  to  issue  a  regulation 
which,  without  at  all  interfering  with  the  independent 
action  of  the  average  stater,  would  more  than  hitherto 
secure  a  proper  execution  of  the  average  statements,  and 
prevent  the  ridiculous  delay  which  now  only  too  frequently 
takes  place  before  a  definite  settlement  of  questions  of 
General  Average  can  be  arrived  at,  to  the  great  prejudice 
of  all  parties  concerned.^ 

17  &  18  Vict.  cap.  101. 

the  merchant  shipping  act,  1854. 

Part  II. — BritisJi  Shi^is — Their  Ownersliijp,  Measurement  and 

Rogistri/. 

18.   No  ship  shall  be  deemed  to  be  a  BritisJi.  ship  unless  she  be- 
longs wholly  to  Owners  of  the  following  description ;  that  is  to  say  : — 
1.  Natural-born  British  subjects: 

Provided  that  no  natural-born  subject  who  has  taken  the 
oath  of  allegiance  to  any  foreign  sovereign  or  state  shall 
be  entitled  to  be  such  Owner  as  aforesaid,  unless  he  has, 
subsequently  to  taking  such  last-mentioned  oath,  taken 
the  oath  of  allegiance  to  Her  Majesty,  and  is  and  con- 
tinues to  be  during  the  whole  period  of  his  so  being,  an 
Owner,  resident  in  some  place  within  Her  IMajesty's 
dominions ;  or,  if  not  so  resident,  memlier  of  a  British 

'  Late  Judge  of  the  High  Court  of  Adminilty. 

^  Since  these  observations  were  made,  the  Average  Adjusters'  Asso- 
ciation has  been  formed,  which  has  caused  a  decided  improvement  in  the  state 
of  things  here  complained  of. 

M  M 


rm  MARITDIE    LEGISLATION. 

factory,  or  partner  in  a  house  actually  carrying  on  busi- 
ness in  the  United  Kingdom,  or  in   some  other  place 
within  Her  Majesty's  dominions. 
2.  Persons  made  denizens  by  letters  of  denization,  or  naturalised 
by  or  pursuant  to  any  Act  of  the  Imperial  Legislature, 
or  by  or  pursuant  to  any  Act  or  ordinance  of  the  proper 
legislative  authority  in  any  British  possession. 
Provided  that  such  persons  are,  and  continue  to  be,   during 
the  whole  period  of  their  so  being  Owners,  resident  in 
some  place  within  Her  Majesty's  dominions,  or,  if  not 
so  resident,  members  of  a  British  factory,  or  partners  in 
a  house   actually  carrying  on  business   in  the  United 
Kingdom,  or  in  some  other  place  within  Her  Majesty's 
dominions,  and  have  taken  the  oath  of  allegiance  to  Her 
Majesty  subsequently  to   the  period  of  their  being  so 
made  denizens  or  naturalised. 
3.  Bodies  corporate  established  under,  subject  to  the  laws  of, 
and  having  their  principal  place  of  business  in  the  United 
Kingdom,  or  some  British  possession. 

It  is  evident  that  this  section  does  not  sanction  the 
bearing  allegiance  to  two  Sovereigns  and  owning  vessels 
under  their  two  respective  flags  at  the  same  time ;  never- 
theless it  is  a  fact  that  a  naturalised  British  subject  owning 
a  vessel  or  vessels  registered  at  the  London  Custom  House, 
has  during  the  time  of  his  residence  in  tliis  country  reas- 
sumed  his  Prussian  nationality,  become  a  citizen  and  mer- 
cliant  in  one  of  the  Prussian  ports,  and  owns  vessels  under 
llie  Prussian  as  well  as  under  the  British  flag.  The  conse 
(juences  which  may  only  too  easily  arise  from  such  a  state 
of  tilings  in  case  of  war  are  apparent.  A  perusal  of  the 
return  of  the  number  and  tonnage  of  American  vessels  sold 
to  British  subjects  in  the  year  1863  most  clearly  shows  the 
t(!mptation  to  wliidi  unscni})ulous  persons  are  exposed  in 
stu-h  times,  and  the  necessity  of  more  strict  regulations.  I 
\v(;uld  su£££fest  tlic  .•iddilioii  ofllic  followiiiL'' :  — 


:\lEriCITANT   STIIITING    ACT,    1854.  531 

(4)  'The  r'm-lil  1(»  own  a  l)i'itisli  sliip  ceases  at  any 
time  that  a  person,  alt  hou^h  residing  witliin  Her 
Majesty's  dominions,  Ix'comes  citizen  or  iiiprcliant 
in  anotlier  country." 

VwiV  111.  —  MdMers  and  Seamen. 

lOl).  The  various  provisions  of  the  tliird  pai't  of  lliis  Act  shall 
have  tlie  f illowiuii^  applications,  unless  the  context  or  suhjcet- 
niatter  requires  a  different  ai)plication;    (that  is  to  say), 

So  much  of  the  third  part  of  this  Act  as  relates  to  the  delivery 
or  transmission  of  lists  of  Crews  to  the  Registrar-General  of  Sea- 
men shall  apply  to  all  Fishing  Vessels  belonging  to  the  United 
Kingdom,  whether  employed  exclusivi^  on  the  Coasts  of  the 
United  Kingdom  or  not ;  to  all  ships  belonging  to  the  Triniti/ 
House,  or  the  Commissioners  of  Northern  Lighthouses,  constituted 
as  hereinafter  mentioned,  or  the  Port  of  DuUin  Corporation,  and 
to  all  pleasure  Yachts,  and  to  the  Owners,  Masters,  and  Crews  of 
such  ships  : 

So  much  of  the  third  part  of  this  Act  as  relates  to  the  delivery 
and  transmission  of  lists  of  Crews,  and  to  the  Wages  and  Effects  of 
deceased  Seamen  and  Apprentices,  shall  apply  to  all  sea-going 
British  ships,  wherever  registered,  of  which  the  Crews  are  discharged 
or  whose  final  port  or  destination  is  in  the  United  Kingdom,  and  to 
the  Owners,  Masters,  and  Crews  of  such  ships  : 

So  much  of  the  third  part  of  this  Act  as  relates  to  the  shipping 
and  discharge  of  Seamen  in  the  United  Kingdom  shall  apply  to  all 
sea-going  British  ships,  wherever  registered,  and  to  the  Owners, 
Masters,  and  Crews  of  such  sliips  : 

So  much  of  the  third  part  of  this  Act  as  relates  to  Seamen 
volunteering  into  the  lloyal  Navy  shall  apply  to  all  sea-goino- 
Briiish  ships,  wherever  registered,  and  to  the  Owners,  Masters,  and 
Crews  of  such  ships,  whei-ever  the  same  mav  be  : 

So  much  of  the  third  part  of  this  Act  as  relates  to  riglits  to 
Wages  and  remedies  for  the  recovery  thereof;  to  the  shipping  and 
discharge  of  Seamen  in  foreign  ports ;  to  leaving  Seamen  abroad 
and  to  the    relief  of  Seamen  in  distress  in  foreign  ports;    to  the 

M  ^t  2 


532  MARITIME   LEGISLATION. 

pro\4sions,  health,  and  accomuiodation  of  Seamen  ;  to  the  power  of 
Seamen  to  make  complaints;  to  the  protection  of  Seamen  from 
imposition;  to  discipline ;  to  Naval  Courts  on  the  high  seas  and 
abroad  ;  and  to  crimes  committed  abroad  ;  shall  apply  to  all  ships 
reo-istered  in  any  of  Her  Majesty's  dominions  abroad,  when  such 
ships  are  out  of  the  jurisdiction  of  their  respective  Governments, 
and  to  the  Owners,  Masters,  and  Crews  of  such  ships : 

And  the  whole  of  the  third  part  of  this  Act  shall  apply  to  all 
sea-going  ships  registered  in  the  United  Kingdom  (except  such  as 
are  exclusively  employed  in  fishing  on  the  coasts  of  the  United 
Kingdom,  and  such  as  belong  to  the  Trinity  House,  the  Com- 
missioners of  Northern  Lighthouses,  or  the  Port  of  BaUin  Corpora- 
tion, and  also  except  pleasure  Yachts),  and  also  to  all  ships  regis- 
tered in  any  British  possession  and  employed  in  trading  or  going 
between  any  place  in  the  United  Kingdom  and  any  place  or  places 
not  situate  in  the  possession  in  which  such  ships  are  registered, 
and  to  the  0\viiers,  Masters,  and  Crews  of  such  ships  respectively, 
wherever  the  same  may  be. 

Under  the  head  of  provisions  applicable  to  '  Colonial 
Ships '  should  be  inserted  the  words  :  '  Examinations  and 
Certificates  of  Masters  and  Mates.' 

The  present  system  of  rendering  examinations  not 
oblif'ator}'  on  all  masters  and  mates  sailing  vessels  under 
the  British  flag  must  improperly  and  unjustly  confer 
advantages  on  colonial  ships  to  which  they  are  not  en- 
titled, as  scarcely  any  merchant  or  underwriter  is  aware 
of  the  disadvantages  to  which  he  may  possibly  subject  his 
property  on  board  of  a  vessel  the  navigation  of  which, 
although  under  the  British  flag,  is  not  conducted  by  two 
oflicers  whose  competency  is  vouched  for,  and  who  con- 
sequently cannot  be  made  to  bear,  what  is  almost  the 
only  eflective  punishment  in  case  of  misconduct,  viz. 
the  cancelling  or  suspending  of  their  respective  cer- 
tificates. 

Ill    the    cMsc    of  llic    ''J'i';iir    wliicli    I    l)i-( )Ul'1iI    \()    llie 


MERCHANT   SHIPPING    ACT,    1854.  533 

notice  of  the  Board  of  Trade  in  18G8,  tlie  disadvantages 
of  such  a  state  of  things  were  made  most  apparent,  and 
in  the  case  of  the  '  Lucy,'  Captain  Dahl,  which  was  lost 
in  18G4:  while  on  a  voyage  from  Capetown  to  East  London, 
and  in  which  most  suspicious  circumstances  came  to  light, 
no  satisfactory  result  was  arrived  at,  because  neither 
master  nor  mate  had  any  certificate  whatever.  I  there- 
fore do  not  imagine  any  grave  reasons  will  be  adduced 
against  the  suggested  alteration,  with  which,  of  course, 
an  exact  definition  of  the  home  trade  of  each  colony  would 
be  combined. 

At  all  events,  public  justice  demands  that  the  differ- 
ences which  the  law  permits  in  the  connnand  and  naviga- 
tion of  British  vessels  shall  be  so  conspicuously  made 
known  that  no  merchant  or  underwriter  is  further  misled 
upon  the  subject  in  question.^ 

'  Lloyd's  list  of  August  29  contains  the  following  striking  confirmation  of 
the  above  views  expressed  by  me  several  months  previously  : — 

'  A  cojjy  of  the  following  despatch  from  the  Governor  of  the  Straits 
Settlements,  referring  to  the  circmnstance  that  large  New  South  Wales  ships 
are  allowed  to  sail  in  the  China  seas  without  certificated  ofiicers,  has  been 
received  from  the  Board  of  Trade. 

'  Lloyd's  :  August  29,  1807. 

'  Government  House,  Singapore  ;  July  4,  18G7. 

'  My  Lord  Dulve, — Ki  an  enquiry  recently  held  here  by  a  Marine  Court 
into  the  circumstances  attending  the  stranding  of  the  British  barque  "Othello," 
oi  Sydney,  Official  No.  4'J,281,  of  342  tons  burthen,  bound  from  Manilla  to 
Sydney,  it  appeared  from  the  evidence  of  the  master,  Mr.  William  Sulhvan, 
who  was  also  the  owner,  that  he  had  no  certificate  of  competency,  or  service, 
having  been  in  the  colonies  since  1827,  and  during  thirty  years  as  master  of 
ships.  The  mate,  Duncan  McDougall,  also  stated  that  he  had  no  certificate 
of  competency,  or  service. 

'  2.  I  presume  your  Grace  will  consider  it  proper  that  these  circumstances 
should  be  brought  to  the  notice  of  the  Board  of  Trade,  as  although  under  the 
existing  law  there  may  be  no  means  of  compelling  masters  and  mates  of 
vessels  tradmg  solely  in  tlie  colonies  to  have  certificates  of  comi)etcncy,  it  is 
probably  not  known  to  underwriters  in  England  that  large  New  South  Wales 
shix)s  are  allowed  to  sail  in  the  China  Seas  without  certificated  ofiicers. 
'  I  have,  iiicc. 

(Signed)  '  H.  St.  Georgk  Okd. 

'His  (irace  the  Duke  of  Buckingiuim  and  Cliandos,  &c'.' 


Ml  MAi:iTlME    LlXaSLA'JIOX. 

Volimteeriruj  in  the  Navij. 

21  i.  Any  Seaman  may  leave  liis  ship  for  the  purpose  of  forth- 
wirh  entering  into  the  Naval  Service  of  Her  Majesty,  and  such 
leavino-  his  ship  shall  not  be  deemed  a  desertion  therefrom,  and 
shall  not  render  him  liable  to  any  punishment  or  forfeiture  what- 
ever ;  and  all  stipulations  introduced  into  any  agreement  whereby 
anv  Seaman  is  declared  to  incur  any  forfeiture  or  be  expo&ed  to 
anv  loss  in  case  he  enters  into  Her  Majesty's  Naval  Service  shall  be 
void,  and  every  Master  or  Owner  who  causes  any  such  stipulation  to 
be  so  introduced  shall  incur  a  penalty  not  exceeding  twenty  pounds. 

215.  Whenever  any  Seaman,  without  having  previously  com- 
mitted any  act  amounting  to  and  treated  by  the  Master  as  deser- 
tion, leaves  his  ship  in  order  to  enter  into  the  Naval  Service  of 
Her  Majesty,  and  is  received  into  such  service,  the  Master  shall 
deliver  to  him  his  clothes  and  efiects  on  board  such  ship,  and  shall 
pay  the  proportionate  amount  of  his  wages  down  to  the  time  of 
such  entry,  subject  to  all  just  deductions,  as  follows  ;  (that  is  to 
say),  the  ]\Iaster  of  the  said  ship  shall  pay  the  same  to  the  ofhcer 
authorised  to  receive  such  Seaman  into  Her  Majesty's  service,  either 
in  money  or  by  bill  drawn  upon  the  Owner,  and  payable  at  sight 
to  the  order  of  The  Accountant-General  of  the  Navy  ;  and  the 
receipt  of  such  officer  shall  be  a  discharge  for  the  money  or  bill  so 
given  ;  and  such  bill  shall  be  exempt  from  stamp  duty  ;  and  if 
such  wages  are  paid  in  money,  such  money  shall  be  credited  in  the 
^fuster-book  of  the  ship  to  the  account  of  the  said  Seaman  ;  and 
if  such  wages  are  paid  by  bill,  such  bill  shall  be  nottd  in  the  said 
Mu.ster-book,  and  shall  be  sent  to  the  said  Accountant-General,  who 
shall  present  the  same,  or  cause  the  same  to  be  presented  for  payment, 
and  shall  en-dit  the  produce  thereof  to  the  account  of  the  said  Sea- 
man ;  and  such  money  or  produce  (as  the  case  may  be)  shall  not 
be  paid  to  the  said  Seaman  until  the  time  at  which  he  would  have 
been  entitled  to  receive  the  same  if  he  had  remained  in  the  service 
of  the  shi[)  which  he  liad  so  quitted  as  aforesaid  ;  and  if  any  such 
bill  is  not  duly  paid  when  presented,  the  said  Accountant-General, 
or  the  Seaman  on  whose  behalf  the  same  is  given,  may  sue  thereon, 
or  may  recover  the  wages  due  by  all  ru'  any  (tithe  means  ])y  which 


MERCHANT   SHIPPING    ACT,    1854.  635 

wages  due  to  Merchant  Seamen  are  recoverable ;  and  if  upon  any 
Seaman  leaving  his  ship  in  the  manner  and  for  the  purpose  afore- 
said, the  Master  fails  to  deliver  his  clothes  and  effects,  or  to  pay 
his  wages  as  hereinbefore  re(piired,  he  shall,  in  addition  to  his 
liability  to  pay  and  deliver  the  same,  incur  a  penalty  not  exceeding 
t-.venty  pounds ;  provided  that  no  officer  who  receives  any  such  bill 
as  aforesaid  shall  be  subject  to  any  liability  in  respect  thereof,  except 
for  the  safe  custody  thereof,  until  sent  to  the  said  Accountant- 
General  as  aforesaid. 

21G.  If  upon  any  Seaman  leaving  his  ship  for  the  purpose  of 
entering  the  Naval  Service  of  Her  Majesty,  the  Owner  or  Master 
of  such  ship  shows  to  the  satisfaction  of  the  Admiralty  that  he  has 
paid  or  properly  rendered  himself  liable  to  pay  an  advance  of  wages 
to  or  on  account  of  such  Seaman,  and  that  such  Seaman  has  not  at 
the  time  of  quitting  his  ship  duly  earned  such  advance  by  service 
therein,  and,  in  the  case  of  such  liability  as  aforesaid,  if  such 
Owner  or  Master  actually  satisfies  the  same,  it  shall  be  lawful  for 
the  Admiralty  to  pay  to  such  Owner  or  Master  so  much  of  such 
advance  as  has  not  been  duly  earned,  and  to  deduct  the  sum  so 
paid  from  the  wages  of  the  Seaman  earned,  or  to  be  earned,  in  the 
Naval  Service  of  Her  Majesty. 

217.  If,  in  consequence  of  any  Seaman  so  leaving  his  ship 
without  the  consent  of  the  Master  or  Owner  thereof,  it  becomes 
necessary  for  the  safety  and  proper  Navigation  of  the  said  ship  to 
engage  a  substitute  or  substitutes,  and  if  the  wages  or  other  re- 
muneration paid  to  such  substitute  or  substitutes  for  subsequent 
service  exceed  the  wages  or  remuneration  which  would  have  been 
payable  to  the  said  Seaman  under  his  agreement  for  similar  service, 
the  Master  or  Owner  of  the  said  ship  may  apply  to  the  llegistrar 
of  the  High  Court  of  Admiralty  in  England  for  a  certificate 
authorising  the  repayment  of  such  excess  ;  and  such  application 
shall  be  in  such  form,  and  shall  be  accompanied  by  such  documents, 
and  by  such  statements,  whether  on  oath  or  otherwise,  as  the  Judge 
of  the  said  Court  from  time  to  time  directs. 

218.  The  said  Registrar  shall,  upon  receiving  any  such  appli- 
cation as  aforesaid,  give  notice  thereof  in  writing,  and  of  the  sum 
claimed,  to  the  Secretary  to  the  Admiralty,  and  shall  prtceed  (o 


50(3  MAIIITIME    LEGISLATION. 

examine  the  said  application,  and  may  call  upon  the  Registrar- 
General  of  Seamen  to  produce  any  papers  in  his  possession  relating 
thereto,  and  may  call  for  further  evidence ;  and  if  the  whole  of  the 
claim  appears  to  him  to  be  just,  he  shall  give  a  certificate  accord- 
ingly ;  but  if  he  considers  that  such  claim,  or  any  part  thereof,  is 
not  just,  he  shall  give  notice  of  such  his  opinion  in  writing,  under 
his  hand,  to  the  person  making  the  said  application,  or  his  attorney 
or  agent ;  and  if  within  sixteen  days  from  the  giving  of  such 
notice  such  person  does  not  leave,  or  cause  to  be  left,  at  the  office 
of  the  Reofistrar  of  the  said  Court  a  written  notice  demanding  that 
the  said  application  shall  be  referred  to  the  Judge  of  the  said  Court, 
then  the  said  Registrar  shall  finally  decide  thereon,  and  certify 
accordingh' ;  but  if  such  notice  is  left  as  aforesaid,  then  the  said 
ap])licatiou  shall  ttand  referred  to  the  said  Judge  in  his  chambers, 
and  his  decision  thereon  shall  be  final,  and  the  said  Registrar  shall 
certify  the  same  accordingly  ;  and  the  said  Registrar  and  Judge 
respectively  shall,  in  every  proceeding  under  this  Act,  have  full 
power  to  administer  oaths,  and  to  exercise  all  the  ordinary  powers 
of  the  Court,  as  in  any  other  proceeding  within  its  jurisdiction  : 
and  the  said  Registrar  or  Judge  (as  the  case  may  be)  may,  if  he 
thinks  fit,  allow  for  the  costs  of  any  proceeding  under  this  Act 
any  sum  not  exceeding  five  f)Ouuds  for  each  Seaman  so  quitting 
his  ship  as  aforesaid;  and  such  sum  shall  be  added  to  the  sum 
allowed,  and  shall  be  certified  by  the  said  Registrar  accordingly. 

219.  Every  certificate  so  given  shall  be  sent  by  post  or  other- 
wise to  the  person  making  the  application,  his  attorney  or  agent, 
and  a  copy  thereof  shall  be  sent  to  the  Accountant-General  of  the 
Navy ;  and  such  Accountant-General  shall,  upon  delivery  to  him 
of  the  said  original  certificate,  together  with  a  receipt  in  writing, 
|)iii'|iiirtliig  to  be  a  receipt  from  the  Master  or  Owner  making  the 
application,  pay  to  the  person  delivering  the  same  out  of  the 
moneys  applicable  to  the  Naval  Service  of  her  Majesty,  and  granted 
by  Parliament  for  the  purpose,  the  amount  mentioned  in  such 
certificate  ;  and  such  certificate  and  receipt  shall  absolutely  discharge 
the  said  Accounlanl-ljicneral  and  Her  Majesty  from  all  liability  in 
respect  of  the  m(jn('ys  so  paid,  or  of  the  said  application. 

220.  I'iVcry   pcrsou   who,  in  making  or   sui)])orting  any  such 


MERCHANT  SHIPPING   ACT,   1854.  5:57 

application,  as  aforesaid,  to  the  Registrar  of  the  High  Court  of 
Adiuiralty,  forges,  assists  in  forging,  or  procures  to  bo  forged,  or 
fraudulently  alters,  assists  in  fraudulently  altering,  or  procures  to 
be  fraudiiK'iitly  altered,  any  document,  and  every  person  who,  in 
making  or  supjjorting  any  such  application,  presents  or  makes  use 
of  any  such  forged  or  altered  document,  or  who,  in  making  or 
supporting  any  such  application,  makes  or  gives,  or  assists  in 
making  or  giving,  or  ])n)cures  to  be  made  or  given,  any  false 
evidence  or  representation,  knowing  the  same  to  be  false,  shall  be 
deemed  guilty  of  a  misdemeanour. 

Volunteering  in  the  Xdvy. — Cases  have  frequently  oc- 
curred where  vessels  have  ])een  entirely  unable  to  complete 
their  crews  in  consequence  of  volunteering  into  the  Navy, 
and  very  serious  losses  have  thereby  arisen  to  the  owners 
and  other  parties  concerned ;  the  mere  restitution  of  dif- 
ferences in  wages  seems  therefore  not  to  be  equitable, 
and,  in  fact,  in  the  margin  to  clause  217  it  is  stated  as 
follows,  viz.  :  '  If  new  Seamen  are  emjaiyed  instead  of  the 
original  Seamen,  the  owner  may  apply  for  repayment  of 
any  extra  expense  he  has  been  put  to.'  This,  I  think, 
should  be  clearly  embodied  in  the  clause  itself,  and  not 
only  excess  of  wages,  but  all  other  exjjenses  and  a  reason- 
able sum  for  detention  should,  when  clearly  proved,  be 
cheerfully  allowed  to  the  parties  aggrieved. 

237.  Every  person  w^ho,  not  being  in  Her  Majesty's  Service, 
and  not  being  duly  authorised  by  law  for  the  purpose,  goes  on 
board  any  ship  about  to  arrive  at  the  place  of  her  destination, 
before  her  actual  arrival  in  dock  or  at  the  place  of  her  discharge, 
without  the  permission  of  the  Master,  shall  for  every  such  offence 
incur  a  penalty  not  exceeding  twenty  pounds ;  and  the  Master  or 
person  in  charge  of  such  ship  may  take  any  such  person  so  going 
on  board  as  aforesaid  info  custody,  uiul  tldiver  him  up  forthwith  to 
any  constable  or  peace  ollicer,  to  be  by  liini  taken  before  a  Justice 


o;38  MARITIME   LEGISLATION. 

or  justices  or  the  sherifl"  of  the  county  in  Scotland^  and  to  be  dealt 
with  according  to  the  provisions  of  tliis  Act.' 

238.  If,  within  twenty-four  hours  after  the  arrival  of  any  ship 
at  any  port  in  the  United  Kingdom,  any  person  then  being  on 
board  such  ship  solicits  any  Seaman  to  become  a  lodger  at  the 
house  of  any  person  letting  lodgings  for  hire,  or  takes  out  of  such 
ship  any  effects  of  any  Seaman,  except  under  his  personal  direction 
and  with  the  permission  of  the  Master,  he  shall  for  every  such 
ofience  incur  a  penalty  not  exceeding  five  pounds. 

The  frequent  reports  of  cases  of  infringement  of  these 
two  clauses  prove  evidently  that  either  the  punishments 
attached  to  the  offences  enumerated  are  not  sufficiently 
severe,  or  the  difficulty  of  bringing  offenders  to  justice  is 
greater  than  previously  anticipated.  One  of  the  most 
noted  places  in  this  respect  is  Cardiff,  and  it  is  quite  clear 
that  some  very  different  and  more  efficient  measure  must 
Ije  taken  in  order  to  stop  these  evil  practices. 

2-43.  Whenever  any  Seaman  who  has  been  lawfully  engaged,  or 
any  Apprentice  to  the  sea  service,  commits  any  of  the  following 
oH'euces,  he  shall  be  liable  to  be  punished  summarily  as  follows; 
(that  is  to  say), 

(Ij  Tor  desertion  he  shall  be  liable  to  imprisonment  for  any 
period  not  exceeding  twelve  weeks,  with  or  without 
hard  laijour,  and  also  to  forfeit  all  or  any  part  of  the 
clothes  and  effects  lie  leaves  on  board,  and  all  or  any 
part  of  the  wages  or  emoluments  which  he  has  then 
earned,  and  also,  if  such  desertion  takes  place  abroad, 
at  the  discretion  of  the  Court,  to  forfeit  all  or  any  part 
of  the  wages  or  emoluments  he  may  earn  in  any  other 
ship  in  which  he  may  be  employed  until  his  next 
return  to  the  United  Kingdom,  and  to  satisfy  any 
excess  of  wages  paid  Ijy  the  Master  or  Owner  of  the 

'  'riiis  Kcctioii  lius  Hince  Ixon  iiiiulc  a  littl*'  more  cHicucious  by  §  o  of  the 
.M<  reliant  Scaiueii  (I'fiMiiciil  nl'  Wa^f's)  Ael.  IHHU. 


MEKCIIAXT   SHIPPING    ACT,    1851.  5;jo 

ship  from  which  he  tk'serts  to  .my  siibstitutu  I'liguo-fd 
in    Ills  i)hice  at  a  higher  rate  of  wages  than   the  rate 
stipulated  to  be  paid  to  him  : 
(2j   lun-  neglecting  or  refusing,  without  reasonable  cause,  to 
join  his  ship,  or  to  proceed  to  sea  in  his  ship,  or  for 
absence  without  leave  at  any  time  within  twenty-four 
hours  of  the  ship's  sailing  from  any  port  either  at  the 
commencement  or  during   the  progress  of  any  voyage, 
or  for  absence  at  any  time  without  leave   and  without 
sufficient   reason  from  his  ship,  or  from  his  duty  not 
amounting  to  desertion  or  not  treated  as  such  by  the 
]\laster,  he  shall  be  liable  to  imprisonment  for  any  period 
not  exceeding  ten  wrecks,  with  or  without  hiird  labour, 
and  also,  at  the  discretion  of  the  Court,  to  forfeit  out  of 
his  wages  a  sum  not  exceeding  the  amount  of  two  days' 
pay,  and  in   addition    for    every  twenty-four  hours  of 
absence  either  a  sum  not  exceeding  six  days'  pay,  or 
any  expenses    which    have    been    properly  incurred  in 
hiring  a  substitute : 
(■'!)   For  quitting  the  ship  without  leave  after  her  arrival  at  her 
port  of  delivery  and  before  she  is  placed  in  security,  he 
shall  be  liable  to  forfeit  out  of  his  wages  a  sum  not 
exceeding  one  mouth's  pay  : 
(!)   For  wilful  disobedience  to  any  lawful  command  he  shall  be 
liable  to  imprisonmnent  for  any  period    not   exceeding 
four  weeks,  with  or  without  hard  labour,  and  also,  at 
the  discretion  of  the  Court,  to  forfeit  out  of  his  wages  a 
sum  not  exceeding  two  days'  pay  : 
(o)   For  continued  wilful  disobedience  to  law^ful  commands,  oi- 
continued  wilful  neglect  of  duty,  he  shall  be  liable  to 
imprisonment  for  any  period  not  exceeding  twelve  weeks 
with  or  without  hard  labour,  and  also,  at  the  discretion 
of  the  Court,  to  forfeit  for  every  twenty-four  hours'  con- 
tinuance of  such  disobedience  or  neglect,  either  a  sum 
not  exceeding  six  days'  pay  or  any  expenses  which  luive 
been  propei'ly  incurred  in  hiring  a  substitute  : 
(())  For  assaulting  any  Master  or  mate  he  shall  be  liable  to  im- 


5J0  MARITIME    LEGISLATION. 

prisoument  for  any  period  not  exceeding  twelve  weeks, 
with  or  without  bard  labour  : 

(7)  For  combining  with  any  other  or  others  of  the  crew  to 

disobey  lawful  commands,  or  to  neglect  duty,  or  to 
impede  the  navigation  of  the  ship  or  the  piogress  of 
the  voyage,  he  shall  be  liable  to  imprisonment  for  any 
period  not  exceeding  twelve  weeks,  with  or  without  hai"d 
labour  : 

(8)  For  wilfully  damaging  the  ship  or  embezzling  or  wilfully 

damaging  any  of  her  stores  or  cargo,  he  shall  be  liable 
to  forfeit  out  of  his  wages  a  sum  equal  in  amount  to  the 
loss  thereby  sustained,  and  also,  at  the  discretion  of  the 
Court,  to  imprisonment  for  any  period  not  exceeding 
twelve  weeks,  with  or  without  hard  labour  : 
(0)  For  any  act  of  smuggling  of  which  he  is  convicted,  and 
whereby  loss  or  damage  is  occasioned  to  the  Master  or 
Owner,  he  shall  be  liable  to  pay  to  such  Master  or 
Owner  such  a  sum  as  is  sufficient  to  reimburse  the 
]\Iaster  or  Owner  for  such  loss  or  damage  ;  and  the 
whole  or  a  proportionate  part  of  his  wages  may  be  re- 
tained in  satisfaction  or  on  account  of  such  liability, 
without  prejudice  to  any  further  remedy. 

Would  it  not  be  more  practical  to  substitute  for  any 
one  under  the  age  of  sixteen  the  j^unislnnent  of  whipping 
in  lieu  of  imprisonment?  Tlie  24  &  25  Yict.  cap.  97,  gives 
the  jjDWcr  lo  a(hl.  ibr  males  under  sixteen  years,  the  punisli- 
ment  of  wliip[)iiig;  why  not  substitute  it  here,  where  it  is 
clcni-  that  a  youth  is  usually  led  away  by  others,  and 
would  only  be  brought  by  imprisonment  into  the  company 
of  bad  cliaracters  ?  '  ^ 

in  part  8  of  this  clause  I  would  omit  the  words  '  wil- 
fully damaging  the  ship,'  as  it  a})pears  to  me  this  oil'ence 

'  Iiiiiirisoimicnt  cannot  now  Ijo  imposed  for  offences  covered  by  sub-scc- 
tioHH  (Ij  und  ('2).  Sec  the  Mereliant  Seamen  (Payment  of  Wayes)  Act,  1880, 
(,  10. 


MEllCIIANT   SrilPPING    ACT,    1854.  541 

is  more  efficiently  treated  in  the  24  &,  25  Vict.  cap.  97, 
and  it  might  perhaps  be  useful  to  refer  here  to  this  enact- 
ment. 

2G0.  Any  officer  in  command  of  any  ship  of  Her  Majesty  on 
any  foreign  station,  or,  in  tlie  aljsence  of  such  officer,  any  Consular 
officer,  may  summon  a  Court,  to  be  termed  a  '  Naval  Court,'  in  the 
following  cases  ;  (that  is  to  say), 

(1)  Whenever  a  complaint  which  appears  to  such  officer  to  re- 

quire immediate  investigation  is  made  to  him  by  the 
Master  of  any  British  ship,  or  by  any  certificated  Mate, 
or  by  one  or  more  of  the  Seamen  belonging  to  any  such 
ship  : 

(2)  Whenever  the  interest  of  the  Owner  of  any  British  ship  or 

of  the  cargo  of  any  such  ship  appears  to  such  officer  to 
require  it : 

(3)  Whenever  any  British,  ship  is  wrecked  or  abandoned  or  other- 

wise lost  at  or  near  the  place  where  such  officer  may  be, 
or  whenever  the  Crew  or  part  of  the  Crew  of  any  British 
ship  which  has  been  wrecked,  abandoned,  or  lost  abroad, 
arrives  at  such  place. 

2.  I  would  suggest  to  insert  the  following  words,  '  or 
their  respective  underwriters,'  before  '  appears,'  &c. 

261.  Every  such  Naval  Court  as  aforesaid  shall  consist  of  not 
more  than  five,  and  not  less  than  three  members,  of  whom  if 
possible,  one  shall  be  an  officer  in  the  Naval  Service  of  Her  Majesty 
not  below  the  rank  of  lieutenant,  one  a  Consular  officer,  and  one 
a  Master  of  a  British  Merchant  ship,  and  the  rest  shall  be  either 
officers  in  the  Naval  Service  of  her  Majesty,  Masters  of  British 
Merchant  ships,  or  British  Merchants  ;  and  such  Court  may  include 
the  Naval  or  Consular  officer  summoning  the  same,  but  shall  not 
include  the  Master  or  Consignee  of  the  ship  to  which  the  parties 
complaining  or  complained  against  may  belong;  and  the  Naval 
or  Consular  officer  in  such  Court,  if  there  is  only  one  such  officer  in 
the  Court,  or.   if  there  is  more  than  one,  the  Naval  or  Consular 


o42  MARITIME   LEGISLATION. 

officer  who,  accarding  to  any  regalatious  forsattling  their  respective 
ranks  for  the  time  being  in  force,  is  of  the  highest  rank,  shall  be 
the  president  of  such  Court. 

In  the  interest  of  public  policy,  I  think  it  advisable  to 
order  that  if  the  party  at  whose  request  the  Naval  Court 
is  summoned,  or  who  gave  such  information  that  its  being 
sunnnoned  was  decided  upon,  should  not  be  personally 
competent  to  take  the  position  of  prosecutor  and  its 
adherent  functions  before  such  Naval  Court,  that  the  officer 
summoning  such  Naval  Court  should  appoint  any  one 
person  of  sufficient  knowledge  to  act  in  such  capacity  of 
prosecutor  before  such  Naval  Court. 

280.  The  Board  of  Tirade  shall  sanction  forms  of  official  log- 
books, which  may  be  different  for  diiferent  classes  of  ships,  so 
that  each  such  form  contains  blanks  for  the  entries  hereinafter 
required ;  and  an  official  log  of  every  sliip  (except  ships  employed 
exclusively  in  trading  between  ports  on  the  coasts  of  the  United 
Kingdom)  shall  be  kept  in  the  appropriate  sanctioned  form ;  and 
such  official  log  may,  at  the  discretion  of  the  Master  or  Owner, 
either  be  kept  distinct  from  the  ordinary  ship's  log  or  united  there- 
with so  that  in  all  cases  all  the  blaidss  in  the  official  log  be  duly 
filled  up. 

I  think  it  is  a  dangerous  proceeding  to  allow  more 
than  one  log  recogni>cd  by  law  on  board  of  any  vessel. 
'I'lie  most  efficient  manner  to  deal  with  the  matter  would 
be  to  follow  the  course  adopted  by  most  of  the  principal 
( Continental  Governments,  wdiere  the  ship's  log  is  only  legal 
if  it  is  kept  in  a  book  nunil)ered  and  sealed  officially,  and 
in  a  Ibim  picscribcd  ])y  law,  and  which  might  at  the  ter- 
miiiMlion  of  the  voyage  be  acted  upon  as  now  j)rescribed 
tor  tlif  (.llici;il  log.^ 

'  Vide  page  nn.'). 


MERCHANT  SHIPPING   ACT,   1854.  543 

28 1.  The  following  offences  in  respsct  of  official  log-books  sliall 
bo  punishable  as  hereinafter  mentioned  ;  (that  is  to  say), 

(I)  If  in  any  case  an  official  log-book  is  not  kept  in  the  manner 
hereby  required,  or  if  any  entry  hereby  directed  to  be 
made  in  any  such  log-book  is  not  made  at  the  time  and  in 
the  manner  hereby  directed,  the  master  shall  for  each 
such  offence  incur  the  specific  penalty  heroin  mentioned 
in  respect  thereof,  or  where  there  is  no  such  specific 
penalty,  a  penalty  not  exceeding  five  pounds. 

(■J)  Every  person  who  makes,  or  procures  to  be  made,  or  assists 
in  making,  any  entry  in  any  official  log-ljook  in  respect 
of  any  occurrence  happening  previously  to  the  arrival  of 
the  ship  at  her  final  port  of  discharge  more  than  twenty- 
four  hours  after  such  arrival,  shall  for  each  such  offence 
incur  a  penalty  not  exceeding  thirty  pounds  : 

(3)  Every  person  who  wilfully  destroys  or  mutilates  or  renders 
illegible  any  entry  in  any  official  log-book,  or  who  wil- 
fully makes,  or  procures  to  be  made,  or  assists  in  making 
any  false  or  fraudulent  entry  or  omission  in  any  such 
log-book,  shall  for  each  such  offence  be  deemed  guilty  of 
a  misdemeanour. 


As  the  concocting  of  averages  and  the  conseqnent 
frauds  upon  owners  and  underwriters  are  only  possible  l)y 
keeping  double  logs,  or  by  making  subsequent  entries  in 
the  official  logs,  and  as  these  frauds  have  lately  augmented 
in  a  fearful  degree,  it  is  absolutely  necessary  to  increase 
the  punishments  for  such  offences  in  a  suitable  manner, 
and  it  ought  to  be  enacted — 

(2)  That  the  offences  here  designated  shall  be  punished 

as  misdemeanours,  and 

(3)  That  the  offences  here  designated  shall  be  punished 

as  felonies. 
But  I  would  most  earnestly  recommend  that  Uie  oppor- 
tunity  should  be  taken  to  make  sucli  enactments  thai  the 


544  MAHTTDIE   LEGISLATION. 

loose  and  inefficient  manner  of  extending  ship's  protests 
would  be  put  a  stop  to. 

Every  ship's  protest  ought  to  be  drawn  up  in  such  a 
manner  that  it  is  apparent  on  the  face  of  the  document 
which  part  is  the  real  coj^y  or  extract  of  the  official  log, 
and  which  are  the  additions  afterwards  thought  of;  for, 
as  sailors  will  sign  and  swear  to  almost  anything  that  is 
laid  before  them,  and  as  in  my  own  experience  ship's  pro- 
tests have  been  issued  and  executed  in  the  most  formal 
manner,  but  containing  facts  entirely  false,  it  is  evident 
that  the  general  public  engaged  in  mercantile  adventures, 
and  entirely  dependent  on  the  truth  of  such  documents, 
have  a  right  to  expect  that  all  regulations  in  respect  there- 
to shall  be  framed  so  carefully  as  to  render  such  irregu- 
larities next  to  impossible. 

Part  IV. — Safety  and  Trevention  of  Accidents. 

292.  The  following  rules  shall  be  observed  with  respect  to  boats 
and  life-buoys  ;  (that  is  to  say), 

(1)  No    decked  ship  (except  ships  used  solely  as  steam-tugs 

and  ships  engaged  in  the  whale  fishery)  shall  proceed 
to  sea  from  any  place  in  the  United  Kingdom  unless 
she  is  provided,  according  to  her  tonnage,  with  boats 
duly  supplied  with  all  requisites  for  use,  and  not  being 
fewer  in  number  nor  less  in  their  cubic  contents  than 
the  boats,  the  number  and  cubic  contents  of  which  are 
specified  in  the  Table  marked  S  in  the  schedule  hereto 
for  the  class  to  which  such  ship  belongs : 

(2)  No  ship  carrying  more  than  ten  passengers  shall  proceed 

to  sea  from  any  place  in  the  United  Kingdom,  unless, 
in  addition  to  the  boats  hereinbefore  required,  she  is 
also  provided  with  a  lifeboat  furnished  with  all  requi- 
sites for  use,  or  unless  one  of  her  boats  hereinbefore 
required  is  rendered  buoyjint  after  tlie  manner  of  a 
lifeboat: 


MERCHANT  SHIPPING   ACT,   18.",4.  545 

(3)  No  sucli  ship  as  last  aforesaid  shall  proceed  to  sea  unlerss 
slie  is  also  provided  with  two  life-buoys : 
And  such  boat  and  lif(vbuoys  shall  be  kept  so  as  to  be  at  all  times 
fit  and  ready  for  use :  provided,  that  the  enactments  with  respect 
to  boats  and  life-buoys  herein  contained  shall  not  apply  in  any  case 
in  which  a  certificate  has  been  duly  obtained  under  the  tenth  sec- 
tion of  the  Passengers'  Act,  1852. 

293.  In  any  of  the  following  cases  (that  is  to  say), 

(1)  If  any  ship    hereinbefore    required   to  be  provided    with 

boats  and  life-buoys  proceeds  to  sea  without  being  so 
provided  therewith,  or  if  any  of  such  boats  or  life-buoys 
are  lost  or  rendered  unfit  for  service,  in  the  course  of 
the  voyage,  through  the  wilful  fault  or  negligence  of 
the  Owner  or  Master  ;  or, 

(2)  If,  in  case  of  any  such  boats  or  life-buoys  being  accident- 

ally lost  or  injured  in  the  course  of  the  voyage,  the 
Master  wilfully  neglects  to  replace  or  repair  the  same 
on  the  first  opportunity ;  or, 

(3)  If  such  boats  and  life-buoys  are  not  kept  so  as  to  be  at  all 

times  fit  and  ready  for  use ; 
Then  if  the  Owner  appears  to  be  in  fault  he  shall  incur  a  penalty 
not  exceeding  one  hundred  pounds,  and  if  the  Master  appears  to 
be  in  fault  he  shall  incur  a  penalty  not  exceeding  fifty  pounds. 

294.  No  officer  of  customs  shall  grant  a  clearance  or  transire 
for  any  ship  hereinbefore  required  to  be  provided  with  boats  or 
with  life-buoys  unless  the  same  is  duly  so  provided ;  and  if  any 
such  ship  attempts  to  go  to  sea  without  such  clearance  or  transire, 
any  such  officer  may  detain  her  until  she  is  so  provided. 

The  subject  of  boats  and  life-buoys  has  been  so  care- 
fully treated  at  the  Society  of  Arts  that  I  refrain  from 
any  observations  on  the  matter  in  question. 

303.  For  the  purpose  of  the  enactments  herein  contained  with 
respect  to  the  surveys  and  certificates  of  passenger  steamsliips,  the 
word  '  passengers '  shall  be  held  to  include  any  persons  carried  in 
a  steam  ship,  other  than  the  Master  and  Crew,  and  the  Owner,  his 

N  N 


5J6  MARITIME   LEGISLATION, 

family  and  servants  ;  and  the  expression  '  passenger  steamer'  sliall 
l)e  lield  to  include  every  British  steamship  carrying  passengers  to, 
from,  or  between  any  place  or  places  in  the  United  Kingdom,  ex- 
ceptino-  steam  ferry  boats  working  in  chains,  commonly  calle<I 
steam  bridges. 

It  appears  to  me  that  tlie  expression  '  passenger 
steamers '  ought  to  be  applied  only  to  those  wliieli  cai-iy 
passengers  for  a  monetary  consideration. 

Quite  recently  a  decision  has  been  given  l)y  the  Judge 
of  the  High  Court  of  Admiralty  (the  '  Ilanna ')  which 
strongly  demonstrates  the  necessity  of  more  careful 
wording  of  the  clause.  In  this  case  Dr.  Lushington  held 
that  a  person  clearly  not  belonging  to  the  crew,  who  was 
on  board  for  the  voyage  as  a  friend  of  the  master,  was  a 
'  nondescript,  certainly  not  a  passenger  ! '  In  my  case  of 
the  'Beta,'  so  fully  referred  to  in  my  remarks  on  the 
([uestion  of  compulsory  pilotage,  two  persons  taken  over 
to  Ireland  out  of  charity  and  paying  no  fares  were  held  to 
l)e  passengers. 

IIow  far  Dr.  Lushington  was  justified  in  adding  to  the 
clear  words  of  this  clause  the  new  exemption  of  nonde- 
scripts maybe  left  for  olhers  to  decide  ;  I  nuist,  however, 
point  out  and  carneslly  urge  u})on  the  15oard  of  Trade  the 
necessity  of  so  IVaniing  and  amending  the  enactments  bv 
whi<-h  the  connncrce  of  ihis  great  country  is  governed, 
ihat  il  shall  no  longer  be  possible  lor  mere  subtleties  of 
reasonin<f  to  make  a  difference  of  many  thousands  of  ponnds 
lo  perfectly  iimocent  persons,  such  being  the  result  of  ihe 
colli i-adiclory  d(;cisions  above  ([noted. 

'.',]'.).  Jf  the  Owner  or  Master  or  other  person  in  charge  of  any 
passoivjer  steamer  receives  on  boai'd  i hereof,  or  on  or  in  any  ])art 
tliercof  or  if  sucli  ship  has  on  boai'd  lliricol,  oi-  on  or  in  any  ])art 
thereof,  anv    nunilier  of  passengers,    which.   haAiiig   regard   to   ihe 


MElICtlANT   SIIIPl'ING    ACT,    1854.  547 

time,  occasion,  and  circumstance  of  the  case,  is  greater  than  the 
number  of  passengers  allowed  by  the  cartificate,  the  Owner  or 
Master  shall  incur  a  penalty  not  exceeding  twenty  pounds,  and 
also  an  additional  penalty  not  exceeding  five  shillings  for  every 
passenger  over  and  above  the  number  allowed  by  the  certificate, 
or,  if  the  fare  of  any  of  the  passengers  on  board  exceeds  five 
shillings,  not  exceeding  double  the  amount  of  the  fares  of  all  the 
passengers  who  are  over  and  above  the  number  so  allowed  as  afore- 
said, such  fare  to  be  estimated  af  the  highest  rate  of  fare  payable 
by  any  passenger  on  board. 

Some  means  should  be  adopted  for  iiisiiriiiL;-  prompter 
and  more  certain  puiiishmeiit  for  offences  against  this 
clause ;  for  instance,  it  is  generally  understood  tliat:  on 
Whit  Monday  1867  the  'Alexandra'  river  steamer  left 
London  Bridge  with  more  than  2,000  persons  on  board, 
her  statutory  number  being  little  in  excess  of  ]  ,000,  and 
she  was,  in  fact,  so  dangerously  overcrowded,  that  200  to 
300  left  her  at  Blackwall ;  any  accident  happening  to  a 
steamer  in  such  a  state  would  be  attended  with  such 
frightful  conse(]^uences  that  no  mercy  should  be  shown  to 
deliberate  offenders. 

326.  Whenever  any  steam  ship  has  sustained  or  caused  any 
accident  occasioning  loss  of  life  or  any  serious  injury  to  any  person, 
or  has  received  any  material  damage  affecting  her  seaworthiness  or 
her  efficiency  either  in  her  hull  or  in  any  part  of  her  machinery, 
the  Owner  or  ^Master  shall,  within  twenty-four  hours  after  the 
happening  of  such  accident  or  damage,  or  as  soon  thereafter  as 
possible,  send  to  the  Board  of  Trade,  by  letter  signed  bv  such 
Owner  or  i\Iaster,  a  report  of  such  accident  or  damage,  and  of  the 
probable  occasion  thereof,  stating  the  name  of  tlu'  ship,  tlu^  port 
to  -which  she  belongs,  and  the  place  where  she  is ;  and  if  such 
Owner  or  Master  neglect  so  to  do  he  shall  for  such  offence  incur  a 
penalty  not  exceeding  fifty  pounds. 

o27.  If  the  Owner  of  any  steaiu  ship  have  reason,  owinf-  to 


548  MARITIME   LEGISLATION. 

the  non-appearance  of  sucli  ship,  or  to  any  other  circumstance,  to 
apprehend  that  such  ship  has  been  wholly  lost,  he  shall,  as  soon  as 
conveniently  may  be,  send  notice  thereof  in  like  manner  to  the 
Board  of  Trade,  and  if  he  neglect  so  to  do  within  a  reasonable  time 
he  shall  for  such  offence  incur  a  penalty  not  exceeding  fifty 
pounds.' 

328.  In  every  case  of  collision,  in  which  it  is  practicable  so  to 
do,  the  Master  shall,  immediately  after  the  occurrence,  cause  a 
statement  thereof,  and  of  the  circumstances  under  which  the  same 
occurred,  to  be  entered  in  the  official  log-book  (if  any),  such  entry 
to  be  signed  by  the  Master,  and  also  by  the  Mate  or  one  of  the 
Crew,  and  in  defoult  shall  incur  a  penalty  not  exceeding  twenty 
pounds. 

I  think  these  clauses  can  be  omitted,  as  the  deposition 
which  the  master  is  bound  to  make  before  the  Eeceiver 
of  Wreck,  cop}^  of  which  is  by  this  officer  transmitted  to 
the  Board  of  Trade,  is  sufficient  for  the  object  the  Board 
has  apparently  in  view  with  respect  to  the  report. 

Part  V. — Tlhiage. 

330.  The  Fifth  Part  of  this  Act  shall  apply  to  the  United 
Kingdom  only. 

331.  Every  pilotage  authority  shall  retain  all  powers  and 
jurisdiction  which  it  now  lawfully  possesses,  so  far  as  the  same 
are  consistent  with  the  provisions  of  this  Act ;  but  no  law  relating 
to  such  authority,  or  to  the  Pilots  licensed  b}^  it,  and  no  act  done 
by  such  authority,  shall,  if  inconsistent  with  any  provision  of  this 
Act,  be  of  any  force  whatever. 

332.  Every  pilotage  authority  shall  have  power,  by  bye-law 
made  with  the  consent  of  Her  JMajesty  in  Council,  to  exempt  the 
Masters  of  any  ships,  or  of  any  classes  of  ships,  from  being  com- 
pelled to  employ  qualified  ]?ilots,  and  tn  annex  any  terms  or 
conditions  to  such  exemptions,  and  to  revise  and  extend  any 
exemptions  now  existing  by  virtue  of  this  Act  or  any  other  Act  of 

'    Sli^'hllv  nincndo.l  by  JiC)  .t  ;S7  Vicl.  e.  Kf). 


MERCHANT  SHIPPING   ACT,   1854.  549 

Parliiunciit,  law,  or  charter,  or  by  usage,  upon  such  terms  aud 
conditions  and  in  such  manner  as  may  appear  desirable  to  such 
authority. 

333.  Subject  to  the  provisions  contained  in  the  Fifth  Part  of 
tliis  Act,  it  sliall  be  lawful  for  every  pilotage  authority,  by  bye-law 
made  with  the  consent  of  Her  ]\Iajesty  in  Council,  from  time  to 
time  to  do  all  or  any  of  the  following  things  within  its  districts  ; 
(that  is  to  say), 

(1)  To  determine  the  qualifications  to  be  required  from  per- 
sons applying  to  be  licensed  as  I'ilots,  whether  in  respect 
of  their  age,  skill,  time  of  service,  character,  or  other- 
wise : 
{'2)  To  make  regulations  as  to  the  approval  aud  licensing  of 
Pilot  boats  and  ships,  with  power  to  establish  and  regu- 
late companies  for  the  support  of  such  boats  aud  ships, 
and  for  a  participation  in  the  profits  made  thereby ;  the 
companies  so  established  to  be  exempt  from  the  pro- 
visions of  the  Act  passed  in  the  session  holden  in  the 
seventh  and  eighth  years  of  the  reign  of  Her  present 
Majesty,  chapter  one  hundred  and  ten,  intituled  '  An 
Act  for  the  Registration,  Incorporation,  and  Regulation 
of  Joint  Stock  Companies  ' : 

(3)  To  make   regulations   for  the  government   of  the  Pilots 

licensed  by  them,  and  for  insuring  their  good  conduct, 
and  their  constant  attendance  to  and  effectual  perform- 
ance of  their  duty,  either  at  sea  or  on  shore : 

(4)  To  fix  the  terms  and  conditions  of  granting  licenses  to 

Pilots  and  Apprentices,  and  of  grantiug  such  pilotage 
certificates  as  hereinafter  mentioned  to  Masters  and 
Mates,  and  to  make  regulations  for  punishing  any 
breach  of  such  regulations  as  aforesaid  committed  by 
such  Pilots  or  Apprentices,  or  by  such  Masters  and 
JNIates,  by  the  withdrawal  or  suspension  of  their  licenses 
or  certificates,  as  the  case  may  be,  or  by  the  infliction 
of  penalties  to  be  recoverable  summarily  before  two 
justices,  so  that  no  such  penalty  be  made  to  exceed  the 
sum  of  twenty  pouuds,  and  so  that  every  such  penalty 


:i/50  MARITIME   LEGISLATION. 

be  capable  of  reduction  at  tlie  discretion  of  the  justices 
bv  whom  the  same  is  inflicted  : 

(5)  To  fix  the  rates  and  prices  or  other  remuneration  to  be 
demanded  and  received  for  the  time  being  by  Pilots 
licensed  by  such  authority,  or  to  alter  the  mode  of 
remunerating  such  Pilots,  in  such  manner  as  such 
authority  may,  with  such  consent  as  aforesaid,  think  fit, 
so  that  no  higher  rates  or  prices  be  demanded  or  re- 
ceived from  the  Masters  or  Owners  of  ships  in  the  case 
of  the  Trinity  House  than  the  rates  and  prices  specified 
in  the  Table  marked  U  in  the  Schedule  hereto  ;  and  in 
the  case  of  all  other  pilotage  authorities,  than  the  rates 
and  prices  which  might  have  been  lawfully  fixed  or 
demanded  by  such  pilotage  authorities  respectively 
under  any  Act  of  Parliament,  charter,  or  custom  in 
force  immediately  before  the  commencement  of  this 
Act: 

(Cy)  To  make  such  arrangements  with  any  other  pilotage 
authority  for  altering  the  limits  of  their  respective  dis- 
tricts, and  for  extending  the  powers  of  such  other 
authority,  or  the  privileges  of  the  Pilots  licensed  by 
such  other  authority  or  any  of  them,  to  all  or  any  part 
of  its  own  district,  or  for  limiting  its  own  powers  or 
the  privileges  of  its  own  Pilots  or  any  of  them,  or  for 
sharing  the  said  last-mentioned  powers  and  privileges 
with  the  said  other  authority  and  the  Pilots  licensed  by 
it,  or  for  delegating  or  surrendering  such  powers  and 
privileges  or  any  of  them  to  any  other  pilotage  au- 
thority either  already  constituted  or  to  be  constituted 
by  agreement  between  such  authorities,  and  to  the 
Pilots  licensed  by  it,  as  may  appear  to  such  pilotage 
authorities  to  bo  desirable  for  the  purpose  of  facilitating 
navigation  or  of  reducing  charges  on  shipping  : 
(7j  To  establish,  either  alone  or  in  conjunction  with  any  other 
pilotage  authority  or  authoi-itics,  funds  for  the  roli(>f  of 
superannuated  or  innrin  (jualified  Pilots,  or  of  their 
wives,  widows,  rir  chikli-cn.or  in  nuikc  any  new  regulalitms 


MKRCIIANT   Sllll'l'lXd    ACT,    18f;4.  r,51 

with  respect  to  any  funds  ulrcady  applicable  tu  the  above 
jiurposes  or  any  of  them,  with  power  to  determine  the 
auunint,  niamu-r,  tiiiu-,  and    persons    (sueli  persons    lo 
be  in    the  service  of  such  pilotage  authority)  to  and  in 
w  hich  and  by  and  upon  whom  the  contributions  in  sup- 
]wrt  of  such  existing  or  future  funds  may  be  made  or 
levied  ;  and  further,  to  declare  the  persons  or  class  of 
persons  (such  persons  or  class  of  person  being  confined 
to  men  in  the  service  of  such  pilotage  authority,  their 
wives,  widows,  or  children)  entitled  to  participate  in  the 
benefits  of  such  existing  or  future  funds,  and  the  terms 
and  conditions  upon  wliicli  they  aif  to  be  so  entitled: 
(8)   To  repeal  or  alter  any   bye-hiw  made  in  exercise    of  the 
above  powers,  and  to  make  a  new  bye-law  or  new  bye- 
laws  in  lieu  thereof:  ' 
And  every  bye-law  duly  made  by  any  pilotage  authority  in  exercise 
of  the  powers  hereby  given  to  it  shall  be  valid  and  effectual,  not- 
withstanding any  Act  of  Parliament,  rule,  law,  or  custom  to  the 
contrary. 

334.  Every  bye-law  proposed  to  be  enacted  by  any  pilotage 
authority  in  pursuance  of  the  foregoing  powers  shall,  before  it  is 
submitted  to  Her  Majesty  in  Council  for  her  assent,  be  published 
in  such  manner  as  may  from  time  to  time  be  prescribed  by  the 
Board  of  Trade. 

335.  Every  Order  in  Council  made  in  pursuance  of  the  pro- 
visions hereinbefore  contained  shall  be  laid  before  both  Houses  of 
Parliament  as  soon  as  possible  after  the  making  thereof. 

336.  If  the  greater  part  in  number  of  the  qualified  Pilots 
belonging  to  any  port,  or  the  Local  Marine  Board,  whtre  there  is 
one,  or  at  any  port  where  there  is  no  Local  jMarine  Board ;  if  any 
Masters,  Owners,  or  insurers  of  ships,  being  not  less  than  six  in 
number,  consider  themselves  aggrieved  by  any  regulation  or  bye-law 
in  force  when  this  Act  comes  into  operation,  or  hereafter  made 
under  some  authority  other  than  the  provisions  of  this  Act,  or  by 
any  defect  or  omission  therein,  they  may  appeal  to  the  Board  of 
'J'rade,  and  the  said  Board  may  thereupon  revoke  or  alter  any  such 

'  To  grant  special  sea  licenses  (35  it  3G  Vict.  c.  73,  §  11). 


552  MARITIME   LEGISLATION. 

regulation  or  bye-law,  or  may  make  additions  thereto  in  such 
manner  as,  having  regard  to  the  interests  of  the  persons  concerned, 
may  appear  to  be  just  and  expedient ;  and  every  order  so  made 
shall  be  conclusive  in  the  matter. 

337.  Every  pilotage  authority  shall  deliver  periodically  to  the 
Board  of  Trade,  in  such  form  and  at  such  times  as  such  Board  re- 
quires, returns  of  the  following  particulars  with  regard  to  pilotage 
within  the  port  or  district  under  the  jurisdiction  of  such  authority  ; 
(that  is  to  say), 

(1)  All  bye-laws,  regulations,  orders,  or  ordinances  relating  to 

Pilots  or  pilotage  for  the  time  being  in  force  : 

(2)  The  names  and  ages  of  all  Pilots  or  Apprentices  licensed 

or  authorised  to  act  by  such  authority,  and  of  all  Pilots 
or  Apprentices  acting  either  mediately  or  immediately 
under  such  authority,  whether  so  licensed  or  authorised 
or  not : 

(3)  The  service  for  which  each  Pilot  or  Apprentice  is  licensed  : 

(4)  The  rates  of  pilotage  for  the  time  being  in  force,  including 

therein  the  rates  and  descriptions  of  all  charges  upon 
shipping  made  for  or  in  respect  of  Pilots  or  pilotage : 

(5)  The  total  amount  received  for  pilotage,  distinguishing  the 

several  amounts  received  from  British  ships  and  from 
foreign  ships  respectively,  and  the  several  amounts  re- 
ceived in  respect  of  different  classes  of  ships  paying 
different  rates  of  pilotage,  according  to  the  scale  of  such 
rates  for  the  time  being  in  force,  and  the  several  amounts 
received  for  the  several  classes  of  service  rendered  by 
Pilots  ;  and  also  the  amount  paid  by  such  ships  (if  any) 
as  have  before  reaching  the  outer  limits  of  pilotage 
water  if  outward  bound,  or  the  port  of  their  destination 
if  inward  bound,  to  take  or  pay  for  two  or  more  Pilots, 
whether  licensed  by  the  same  or  by  different  pilotage 
authorities ;  together  with  the  numbers  of  the  ships  of 
each  of  the  several  classes  paying  such  several  amounts 
as  aforesaid: 
(<)j  'j'lie  receipt  and  expenditure  of  all  moneys  received  by  or 
on  behalf  of  such  autliorily,  or  by  or  on  behalf  of  an)' 


MERCHANT  SHIPPING   ACT,    1854.  553 

Sub-Commissioners   appointed  by  them,  in  respect  of 

Pilots  or  pilotage. 
And  shall  allow  the  Board  of  Trade,  or  any  persons  appointed  by 
such  Board  for  the  purpose,  to  inspect  any  books  or  documents  in 
its  possession  relating  to  the  several  matters  hereinbefore  required 
to  be  returned  to  the  Board  of  Trade. 

338.  If  any  of  such  pilotage  authorities  as  aforesaid  (other  than 
the  Trinity  House,  or  Sub-Commissioners  of  Pilotage  appointed  by 
it,  as  hereinafter  mentioned)  fail  to  deliver  to  the  Board  of  Trade 
the  periodical  returns  hereinbefore  required  within  one  year  of  such 
time  as  may  be  fixed  by  such  Board  for  the  purpose,  or  if  any  of 
such  authorities  do  not  allow  the  said  Board,  or  any  persons  who 
may  be  appointed  by  it  for  the  purpose,  to  inspect  any  books  or 
documents  in  their  possession  relating  to  the  matters  hereinbefore 
required  to  be  returned  by  them,  it  shall  be  lawful  for  Her  Majesty, 
by  and  with  the  advice  of  her  Privy  Council,  to  direct  that  all  the 
rights  and  powers  of  such  authorities  in  respect  of  pilotage  shall 
cease  or  be  suspended  during  such  time  as  Her  Majesty  directs ; 
and  thereupon  the  Trinity  House  shall  thereafter,  or  during  such 
time  as  such  susj)ension  may  continue,  have  and  exercise  the  same 
powers  of  appointing  Sub-Commissioners  of  Pilotage,  and  of  licens- 
ing Pilots,  and  of  establishing  and  altering  rates  of  pilotage,  within 
the  district  within  which  the  authority  so  making  default  has  pre- 
viously appointed  or  licensed  Pilots,  as  it  is  by  this  Act  authorised 
to  exercise  in  any  district  for  which  no  particular  provision  is  made 
by  any  Act  of  Parliament  or  charter  for  the  appointment  of  Pilots, 
and  shall  also  during  such  time  as  aforesaid  have  and  exercise  the 
same  rights,  title,  and  powers  to  and  in  respect  of  any  pilotage 
funds  or  other  pilotage  property  which  the  said  pilotage  authorities 
would  or  might  have  had  or  exercised  if  not  so  suspended  as  afore- 
said. 

339.  The  Board  of  Trade  shall,  without  delay  cause  the  several 
returns  hereinbefore  required  to  be  made  to  such  Board  to  be  laid 
before  both  Houses  of  Parliament. 

340.  The  Master  or  Mate  of  any  ship  may,  upon  giving  due 
notice,  and  consenting  to  pay  the  usual  expenses,  apply  to  any 
pilotage  authority  to  be  examined  as  to  his  capacity  to  pilot  the 


r,o4  >[APJTTME   LEGISLATION'. 

ship  of  wliich  lie  is  Master  or  Mate,  or  any  one  or  more  ships  be- 
longing to  the  same  Owner,  within  any  part  of  tlie  disti-ict  over 
which  such  pilotage  authority  has  jurisdiction  ;  and  such  Master 
or  Mate  shall,  if  such  authority  thinks  fit,  thereupon  be  examined  ; 
and  if  found  competent,  a  pilotage  certificate  shall  be  granted  to 
him,  containing  his  name,  a  specification  of  the  ship  or  ships  in 
respect  of  which  he  has  been  examined,  and  a  description  of  the 
limits  within  which  he  is  to  pilot  the  same,  such  limits  to  be 
within  such  jurisdiction  as  aforesaid ;  and  such  certificate  shall 
enable  the  person  therein  named  to  pilot  the  ship  or  any  of  the 
ships  therein  specified,  of  which  he  is  acting  as  ]\Iaster  or  Mate  at 
the  time,  but  no  other,  within  the  limits  therein  described,  w^ithout 
incurring  any  penalties  for  the  non-employment  of  a  qualified 
Pilot. 

341.  The  pilotage  certificate  so  granted  shall  not  bo  in  force 
for  more  than  one  year,  unless  the  same  is  renewed,  which  may 
from  time  to  time  be  done  by  an  indorsement  under  the  hand  of 
the  Secretary  or  other  proper  ofliicer  of  the  authority  by  whom 
such  certificate  was  granted. 

31-2.  If  upon  complaint  to  the  Board  of  Trade  it  appear  to 
such  Board  that  any  such  authority  as  aforesaid  has  v/ithout 
reasonable  cause  refused  or  neglected  to  examine  any  Master 
or  Mate  who  has  applied  to  them  for  the  purpose,  or  after  he 
lias  passed  the  examination  has  without  reasonable  cause  refused 
or  neglected  to  grant  him  a  pilotage  certificate,  or  that  the  ex- 
amination of  any  such  Master  or  Mate  has  been  unfairly  or 
improperly  conducted,  or  that  any  terms  imposed  or  sought  to  be 
imposed  by  such  authority  are  unfair  or  improper,  or  that  any 
pilotage  certificate  granted  by  such  authority  has  been  improperly 
withdrawn,  the  Board  of  Trade  may,  if  in  its  judgment  the 
circumstances  appear  to  require  it,  appoint  persons  to  examine 
such  Master  or  Mate,  and  if  he  is  found  competent  may  grant  him 
a  pilotage  certificate,  containing  the  same  particulars  as  would 
liavc  been  inserted  in  any  certificate  granted  by  such  pilotage 
authorities  as  aforesaid,  upon  such  terms  and  conditions,  and 
f-ubjcct  to  such  regulations,  as  such  Board  may  think  fit;  and  such 
((•i-tificale  shall  have  llie   sanic^  cfrect  ris  if  it  had   Iteen  granted   by 


MERCHANT   SIIIITING   ACT.    1854.  55r, 

sucli  pilotage  authority  as  aforesaid ;  and  sucli  certificate  shall  be 
in  force  for  one  year,  and  may  be  renewed  from  year  to  year, 
either  by  the  said  authorities  in  manner  hereinbefore  mentioned, 
or  by  the  Board  of  'J'rade,  if  such  Board  thinks  fit,  such  renewal 
to  be  indorsed  on  the  said  certificate,  either  by  such  person  as  the 
Board  of  Trade  may  appoint  for  the  purpose,  or  in  manner  herein- 
before provided  as  to  certificates  granted  by  any  pilotage  authority. 

343.  All  ]\Iasters  or  Mates  to  or  for  whom  any  such  pilotage 
certificates  as  aforesaid  are  granted  or  renewed  by  any  pilotage 
authority  shall  pay  to  such  authority,  or  as  it  directs,  such  fees 
upon  their  respective  certificates  and  upon  the  renewals  thereof, 
as  are  from  time  to  time  fixed  for  that  purpose  by  such  authority, 
with  the  consent  of  the  Board  of  Trade ;  and  all  iMasters  and 
Mates  to  or  for  whom  any  such  certificates  are  granted  or  renewed 
by  the  Board  of  Trade  shall  pay  to  such  Board,  or  as  it  directs, 
such  fees  upon  their  certificates  and  ujoon  the  renewals  thereof  as 
may  be  -fixed  by  such  Board,  so  nevertheless  that  in  the  case  of 
pilotage  certificates  granted  or  renewed  by  the  Board  of  Trade  such 
fees  shall  in  no  case  be  less  than  the  fees  payable  by  the  qualified 
Pilots  in  the  same  districts  upon  their  licenses  and  the  renewal 
thereof;  and  such  fees  shall  in  the  case  of  certificates  and  renewals 
granted  by  pilotage  authorities  be  applicable  either  to  paying  the 
expense  of  the  examinations  or  any  other  general  expenses  connected 
with  pilotage  incurred  by  such  authorities,  or  to  the  Pilots'  Super- 
annuation Fund  of  the  district  (if  any),  or  otherwise  for  the  benefit 
of  the  Pilots  appointed  by  such  authorities,  as  such  authorities 
think  fit ;  and  such  fees  shall  in  the  case  of  pilotage  certificates 
granted  or  renewed  by  the  Board  of  Trade  be  applicable  to  the 
expense  of  the  examinations,  and  the  surplus  (if  any)  shall  be 
applied  for  the  benefit  of  the  qualified  Pilots  of  the  port  or  district 
to  which  such  certificates  apply,  in  such  manner  as  such  Board 
thinks  fit. 

344.  If  at  any  time  it  appears  to  the  Board  of  Trade  or  to  any 
pilotage  authority  that  any  Master  or  Mate  to  whom  a  pilotage 
certificate  has  been  granted  by  such  Board  or  authority  has  been 
guilty  of  misconduct,  or  has  shown  himself  incompetent  to  pilot 
his  shi]i.  such  13oard  or  such  authority  (as  the  case  may  be)  may 


556  MARITIME   LEGISLATION. 

thereupon    withdraw    his    certificate,    and    such    certificate    shall 
thenceforth  cease  to  be  of  any  effect  whatever, 

345.  All  boats  and  ships  regularly  employed  in  the  pilotage 
service  of  any  district  shall  be  approved  and  licensed  by  the 
pilotage  authority  of  such  district,  who  may,  at  their  discretion, 
appoint  and  remove  the  Masters  of  such  boats  and  ships. 

346,  Every  pilot-boat  or  ship  shall  be  distinguished  by  the 
following  characteristics  ;  (that  is  to  say), 

(1)  A  black  colour  painted  or  tarred  outside,  with  the  exception 

of  such  names  and  numbers  as  are  hereinafter  men- 
tioned ;  or  such  other  distinguishing  colour  or  colours 
as  the  pilotage  authority  of  the  district,  with  the  consent 
of  the  Board  of  Trade,  directs  : 

(2)  On  her  stern  the  name  of  the  Owner  thereof  and  the  port 

to  which  she  belongs  painted  in  white  letters  at  least 
one  inch  broad  and  three  inches  long,  and  on  each  bow 
the  number  of  the  license  of  such  boat  or  ship  ; 

(3)  When  afloat,  a  flag  at  the  masthead  or  on  a  sprit  or  staff, 

or  in  some  other  equally  conspicuous  situation  ;   such 

flag  to  be  of  large  dimensions  compared  with  the  size 

of  the  boat  or  ship  carrying  the  same,  and  to  be  of  two 

colours,  the  upper  horizontal  half  white,  and  the  lower 

horizontal  half  red  : 

And  it  shall  be  the  duty  of  the  Master  of  such  boat  or  ship  to 

attend  to  the  following  particulars  :  First,  that  the  boat  or  ship 

possesses  all  the  above  characteristics  ;  secondly,  that  the  aforesaid 

flag  is  kept  clean  and  distinct,  so  as  to  be  easily  discerned  at  a 

})roper  distance ;  and,  lastly,  that  the  names  and  numbers  before 

iiifiitionrd  are  not  at  any  time  concealed ;  and  if  default  is  made  in 

any  of  the  above  particulars  he  shall  incur  a  penalty  not  exceeding 

twenty  pounds  for  each  default. 

3 17.  Whenever  any  qualified  Pilot  is  carried  off  in  a  boat  or 
ship  not  in  the  pilotage  service  he  shall  exhibit  a  flag  of  the  above 
description,  in  order  to  show  that  such  boat  or  ship  has  a  qualified 
Pilot  on  board  ;  and  if  he  fails  to  do  so  without  reasonable  cause  he 
shall  incur  a  penalty  not  exceeding  fifty  pounds. 

348,  If  any  boat  or  ship,  not  having  a  licensed  Pilot  on  board, 


MERCHANT  SHIPPING   ACT,   1854.  557 

displays  a  flag  of  the  above-mentioned  description,  there  shall 
be  incurred  for  every  such  offence  a  penalty  not  exceeding  fifty 
pounds,  to  be  recovered  from  the  Owner  or  from  the  Master  of  such 
boat  or  ship. 

3  A9.  Every  qualified  Pilot  on  his  appointment  shall  receive  a 
license,  containing  his  name  and  usual  place  of  abode,  together 
with  a  description  of  his  person,  and  a  specification  of  the  limits 
within  which  he  is  qualified  to  act ;  and  it  shall  be  the  duty  of  the 
principal  officer  of  Customs  at  the  place  at  or  nearest  to  which  any 
qualified  Pilot  may  reside,  upon  his  request,  to  register  his  license  ; 
and  no  qualified  Pilot  shall  be  entitled  to  act  as  such  until  his 
license  is  so  registered  ;  and  any  qualified  Pilot  acting  beyond  the 
limits  for  which  he  is  qualified  by  his  license,  shall  be  considered 
as  an  unqualified  I'ilot. 

350.  Every  qualified  Pilot  shall,  upon  receiving  his  license,  be 
furnished  with  a  copy  of  such  part  of  this  Act  as  relates  to  pilot- 
age, together  with  a  copy  of  the  rates,  bye-laws,  and  regulations 
established  within  the  district  for  which  he  is  licensed ;  and  he 
shall  produce  such  copies  to  the  Master  of  any  ship  or  other  person 
employing  him,  when  required  to  do  so,  under  a  penalty  in  case  of 
default  not  exceeding  five  pounds. 

351.  Every  qualified  Pilot,  while  acting  in  that  capacity,  shall 
be  provided  with  his  license,  and  produce  the  same  to  every  person 
by  whom  he  is  employed,  or  to  whom  he  tenders  his  services  as 
Pilot ;  and  if  he  refuses  to  do  so  at  the  request  of  such  person,  he 
shall  incur  for  each  offence  a  penalty  not  exceeding  ten  pounds, 
and  shall  be  subject  to  suspension  or  dismissal  by  the  pilotage 
authority  by  whom  he  is  licensed. 

352.  Every  qualified  Pilot,  when  required  by  the  pilotage 
authority  who  appointed  him,  shall  produce  or  deliver  up  his 
license ;  and  on  the  death  of  any  qualified  Pilot  the  person  into 
whose  hands  his  license  happens  to  fall  shall  without  delay  trans- 
mit the  same  to  the  pilotage  authority  who  appointed  the  deceased 
Pilot,  and  any  Pilot  or  person  failing  to  comply  with  the  provisions 
of  this  section  shall  incur  a  penalty  not  exceeding  ten  pounds. 

353.  Subject  to  any  alteration  to  be  made  by  any  pilotage 
authority  in  pursuance  of  the  power  hereinbefore  in  that  behalf 


558  MAllITIME    LEOISLATIOX. 

given,  the  employment  of  pilots  shall  continue  to  bs  compulsoiy 
in  all  districts  in  which  the  same  was  by  law  compulsory  imme- 
diately before  the  time  when  this  Act  comes  into  operation ;  and 
all  exemptions  from  compulsory  pilotage  then  existing  within  such 
districts  shall  also  continue  in  force ;  and  every  Master  of  any  un- 
exempted  ship  navigating  within  any  such  distjict  wlio,  after  a 
qualified  Pilot  has  offered  to  take  charge  of  such  ship  or  has  made 
a  sio-nal  for  that  purpose,  either  himself  pilots  such  ship  without 
possessing  a  pilotage  certificate  enabling  him  so  to  do,  or  employs 
or  continues  to  employ  an  unqualified  person  to  pilot  her,  and 
every  Master  of  any  exempted  ship  navigating  within  any  such 
district,  who,  after  a  qualified  Pilot  has  offered  to  take  charge  of 
such  ship,  or  has  made  a  signal  for  that  purpose,  employs  or  con- 
tinues to  employ  an  unqualified  Pilot  to  pilot  her,  shall  for  every 
such  offence  incur  a  penalty  of  double  the  amount  of  pilotage 
demandable  for  the  conduct  of  such  ship. 

oo4:.  The  Master  of  every  ship  carrying  passengers  between 
anv  place  situate  in  the  United  Kingdom,  or  the  islands  of  Guern- 
seif,  Jersey,  Sarlc,  Alderney,  and  Man,  and  any  other  place  so  situate, 
when  navigating  upon  any  waters  situate  within  the  limits  of  any 
district  for  which  Pilots  are  licensed  by  any  pilotage  authority 
under  the  provisions  of  this  or  of  any  other  Act,  or  upon  any  part 
thereof  so  situate,  shall,  unless  he  or  his  Mate  has  a  pilotage  cer- 
tificate enabling  such  Master  or  Mate  to  pilot  the  said  ship  within 
such  district,  granted  under  the  provisions  hereinbefore  contained 
or  such  certificate  as  next  hereinafter  mentioned,  being  a  certificate 
applicable  to  such  district  and  to  such  ship,  employ  a  qualified 
l^ilot  to  pilot  his  ship ;  and  if  he  fails  so  to  do  he  shall  for  every 
offence  incur  a  penalty  not  exceeding  one  hundred  pounds. 

355.  Any  Master  or  Mate  of  a  ship  which  by  the  last  preceding 
section  is  made  subject  to  comjjulsory  pilotage  may  apply  to  the 
J3oard  of  Trade  for  a  certificate,  and  the  Board  of  Trade  shall 
thereupon,  on  satisfactory  proof  of  his  having  continuously  piloted 
any  ship  within  the  limits  of  any  pilotage  district  or  of  any  part 
or  parts  thereof  for  two  years  prior  to  the  commencement  of  this 
Act,  or  upon  satisfactory  proof  by  examination  of  his  conqoetcncy, 
or  otherwise  as  it  may  deem  expedient,  cause  to  be  granted  to  liini, 


MKRCIIANT   STIlPflNG    ACT,    1851.  TwO 

or  to  be  iiulorsed  on  any  certificate  of  competency  or  service  ob- 
tained by  him  under  the  Third  Part  of  tliis  Act,  a  certificate  to 
the  effect  that  he  is  authorised  to  pilot  any  ship  or  sliips  belonging 
to  the  same  owner,  and  of  a  draft  of  water  not  greater  than  such 
draft  as  may  be  specified  in  the  certificate  within  the  limits  afore- 
said, and  the  said  certificate  shall  remain  in  force  for  such  time  as 
thi>  !)oard  of  Trade  directs,  and  shall  eiuiblo  the  Master  or  Mate 
therein  named  to  conduct  the  ship  or  ships  therein  specified  within 
the  limits  therein  described  to  the  same  extent  as  if  the  last  pre- 
ceding section  had  not  been  passed,  but  not  further  or  otherwise  ; 
and  every  such  Master  or  ^NFate  shall,  upon  applying  for  such 
certificate  or  any  renewal  thereof,  pay  to  the  Board  of  Trade  or  as 
it  directs  such  fees  not  exceeding  the  fees  payable  on  an  examina- 
tion for  a  Mastei-'s  certificate  of  competency  under  the  Third  Part 
of  this  Act  as  the  Board  of  Trade  directs;  and  such  fees  shall  be 
applied  in  the  same  manner  in  which  the  foes  payable  on  such  last- 
mentioned  examination  are  made  applicable. 

356.  If  any  boat  or  ship,  having  a  qualified  Pilot  on  board, 
leads  any  ship  which  has  not  a  qualified  Pilot  on  board  when  sucli 
last-mentioned  ship  cannot  from  particular  circumstances  be  boarded, 
the  Pilot  so  leading  such  last-mentioned  ship  shall  be  entitled  to  the 
full  pilotage  for  the  distance  run  as  if  he  had  actually  been  on 
board  and  had  charge  of  such  ship. 

357.  No  Pilot,  except  under  circumstances  of  unavoidable 
necessity,  shall  without  his  consent  be  taken  to  sea  or  beyond 
the  limits  for  which  he  is  licensed  in  any  ship  whatever  ;  and  every 
l^ilot  so  taken  under  circumstances  of  unavoidable  necessity  or 
without  his  consent  shall  be  entitled,  over  and  above  his  pilotage, 
to  the  sum  of  ten  shillings  and  sixpence  a  day,  to  be  computed 
from  and  inclusive  of  the  day  on  which  such  ship  passes  the  limit 
to  which  he  was  engaged  to  pilot  her  up  to  and  inclusive  of  the 
day  of  his  being  returned  in  the  said  ship  to  the  place  where  he 
was  taken  on  board,  or  up  to  and  inclusive  of  such  day  as  will  allow 
him,  if  discharged  from  the  ship,  sufficient  time  to  return  thereto; 
and  in  such  last-mentioned  case  he  shall  be  entitled  to  his  reason- 
able travelling  expenses. 

358.  Any  qualified  Pilot  demanding  or  receiving,  and  also  any 


560  MARITIME   LEGISLATION. 

^Master  offering  or  paying  to  any  Pilot,  any  other  rate  in  respect  of 
pilotage  services,  whether  greater  or  less,  than  the  rate  for  the  tims 
beino-  demandable  by  law,  shall  for  each  offence  incur  a  penalty  not 
exceeding  ten  pounds. 

359.  If  any  Master,  on  being  requested  by  any  qualified  Pilot 
having  the  charge  of  his  ship  to  declare  her  draught  of  water,  re- 
fuses to  do  so,  or  himself  makes  or  is  privy  to  any  other  person 
making  a  false  declaration  to  such  Pilot  as  to  such  draught,  he 
shall  incur  a  penalty  for  every  such  offence  not  exceeding  double 
the  amount  of  pilotage  which  would  have  been  payable  to  the 
Pilot  making  such  request ;  and  if  any  Master  or  other  person 
interested  in  a  ship  makes  or  is  privy  to  any  other  person  making 
any  fraudulent  alteration  in  the  marks  on  the  stern  or  stem-post 
of  such  ship  denoting  her  draught  of  water,  the  offender  shall  incur 
a  penalty  not  exceeding  five  hundred  pounds. 

360.  A  qualified  Pilot  may  supersede  an  unqualified  Pilot,  but 
it  shall  be  lawful  for  the  Master  to  pay  to  such  unqualified  Pilot 
a  proportionate  sum  for  his  services,  and  to  deduct  the  same  from 
the  charge  of  the  qualified  Pilot ;  and  in  case  of  dispute  the  pilotage 
authority  by  whom  the  qualified  Pilot  is  licensed  shall  determine 
the  proportionate  sums  to  which  each  party  is  entitled. 

361.  An  unqualified  Pilot  assuming  or  continuing  in  the  charge 
of  any  ship  after  a  qualified  Pilot  has  offered  to  take  charge  of  her, 
or  using  a  license  which  he  is  not  entitled  to  use  for  the  purpose 
of  making  himself  appear  to  be  a  qualified  Pilot,  shall  for  each 
offence  incur  a  penalty  not  exceeding  fifty  pounds. 

362.  An  unqualified  Pilot  may,  within  any  pilotage  district, 
without  subjecting  himself  or  his  employer  to  any  penalty,  take 
charge  of  a  sliip  as  Pilot  under  the  following  circumstances; 
(that  is  to  say), 

When  no  qualified  Pilot  has  offered  to  take  charge  of  such 
ship,  or  made  a  signal  for  that  purpose  ;  or 

When  a  ship  is  in  distress  or  under  circumstances  making  it 
necessary  for  the  Master  to  avail  himself  of  the  best  assistance 
which  can  be  found  at  the  time ;  or 

For  the  purpose  of  changing  the  moorings  of  any  ship  in  port, 
or  of  tuklng  Iht  inio  or  out  of  any  dock,  in  cases  where  such  act 


MEKCILVNT   SIIIPPIXG    ACT,    I8-4.  ,^Gl 

can  be  done  by  an  unqualified  Pilot  without  infringing  the  regula- 
tions of  the  port,  or  any  orders  which  the  harbour-master  is  legally 
empowered  to  give. 

3G3.  The  following  persons  shall  be  liable  to  pay  pilotage  dues 
for  any  ship  for  which  the  services  of  a  qualified  Pilot  are  obtained  ; 
(that  is  to  say),  the  Owner  or  Master,  or  such  consignees  or  agents 
thereof  as  have  paid  or  made  themselves  liable  to  pay  any  other 
charge  on  account  of  such  ship  in  the  port  of  her  arrival  or  dis- 
charge, as  to  pilotage  inwards,  and  in  the  port  from  which  she 
clears  out  as  to  pilotage  outwards :  and  in  default  of  payment  such 
pilotage  dues  may  be  recovered  in  the  same  manner  as  penalties  of 
the  like  amount  may  be  recovered  by  virtue  of  this  Act ;  but  such 
recovery  shall  not  take  place  until  a  previous  demand  thereof  has 
been  made  in  writing,  and  the  dues  so  demanded  have  remained 
unpaid  for  seven  days  after  the  time  of  such  demand  being  made. 

364.'.  Every  consignee  and  agent  (not  being  the  Owner  or 
Master)  hereby  made  liable  for  the  payment  of  pilotage  dues  in 
respect  of  any  ship  may,  out  of  any  moneys  in  his  hands  received 
on  account  of  such  ship  or  belonging  to  the  Owner  thereof,  retain 
the  amount  of  all  dues  so  paid  by  him  together  with  any  reasonable 
expenses  he  may  have  incurred  by  reason  of  such  payment  or 
liability. 

365.  If  any  qualified  Pilot  commits  any  of  the  following 
offences  ;  (that  is  to  say), 

(1)  Keeps  himself,  or  is  interested  in  keeping  by  any  agent, 

servant,  or  other  person,  any  public-house  or  place  of 
public  entertainment,  or  sells,  or  is  interested  in  selling, 
any  wune,  spirituous  liquors,  tobacco,  or  tea ; 

(2)  Commits  any  fraud  or  other  offence  against  the  revenues 

of  Customs  or  Excise,  or  the  laws  relating  thereto  ; 

(3)  Is  in  any  way,  directly  or    indirectly,  concerned  in    any 

corrupt  practices  relating  to  ships,  their  tackle, 
furniture,  cargoes,  crews,  or  passengers,  or  to  persons 
in  distress  at  sea  or  by  shipwreck,  or  to  their  moneys, 
goods,  or  chattels  ; 

(4)  Lends  his  license  ; 

(5)  Acts  as  Pilot  whilst  suspended  ; 

0  0 


5G2  MARITIME    LEGISLATION. 

(6)  Acts  as  Pilot  when  in  a  state  of  intoxication  ; 

(7)  Employs,  or  causes  to  be  employed,  on  board  any  sliip  of 

which  he  has  the  charge,  any  boat,  anchor,  cable,  or 
other  store,  matter,  or  thing  beyond  what  is  necessary 
for  the  service  of  such  ship,  with  the  intent  to  enhance 
the  expenses  of  pilotage  for  his  own  gain  or  for  the 
gain  of  any  other  person  ; 

(8)  Refuses,  or  wilfully  delays,  when  not  prevented  by  illness 

or  other  reasonable  cause,  to  take  charge  of  any  ship 
within  the  limits  of  his  license  upon  the  signal  for  a 
Pilot  being  made  by  such  ship,  or  upon  being  required 
to  do  so  by  the  JMaster,  Owner,  Agent,  or  Consignee 
thereof,  or  by  any  officer  of  the  pilotage  authorities  by 
whom  such  Pilot  is  licensed,  or  by  any  principal  officer 
of  Customs ; 

(9)  Unnecessarily  cuts  or  slips,  or  causes  to  be  cut  or  slipped, 

any  cable  belonging  to  any  ship  ; 

(10)  Refuses,  on  the  request  of  the  Master,  to  conduct  the  ship 

of  which  he  has  the  charge  into  any  port  or  place  into 
which  he  is  qualified  to  conduct  the  same,  except  on 
reasonable  gi'ound  of  danger  to  the  ship  ; 

(11)  Quits  the   ship  of  which  he  has  the  charge,  without  the 

consent  of  the  Master,  before  the  service  for  which  he 
was  hired  has  been  performed  ; 

He  shall  for  each  such  offence,  in  addition  to  any  liability  for 
damages  at  the  suit  of  the  person  aggrieved,  incur  a  penalty  not 
exceedino-  one  hundred  pounds,  and  be  liable  to  suspension  or 
dismissal  by  the  pilotage  authority  by  whom  he  is  licensed ;  and 
every  person  who  procures,  abets,  or  connives  at  the  commission 
of  any  such  offence  shall  likewise,  in  addition  to  any  such  liability 
for  damages  as  aforesaid,  incur  a  penalty  not  exceeding  one 
hundred  pounds,  and,  if  a  qualified  Pilot,  shall  be  liable  to  sus- 
pension or  dismissal  by  the  pilotage  authority  by  whom  he  is 
licensed. 

36G.  If  any  Pilot,  when  in  charge  of  any  ship,  ])y  wilful  breach 
of  duty,  or  by  neglect  of  duty,  or  by  reason  of  drunkenness,  does 
any  act   touding   to    the   immediate   loss,   destruction,   or  serious 


MERCHANT   SIIirriNG    ACT,    1854.  £03 

damage  of  such  ship,  or  tending  immediately  to  endanger  the  life 
or  limb  of  any  person  on  board  such  ship ;  or  if  any  Pilot,  by 
wilful  breach  of  duty,  or  b}^  neglect  of  duty,  or  by  reason  of 
drunkenness,  refuses  or  omits  to  do  any  lawful  act  proper  and 
requisite  to  be  done  by  him  for  preserving  such  ship  from  loss, 
destruction,  or  serious  damage,  or  for  preserving  any  person  be- 
longing to  or  on  board  of  such  ship  from  danger  to  life  or  lind? ; 
the  Pilot  so  offending  shall,  for  each  such  offence,  be  deemed  guilty 
of  a  misdemeanour,  and,  if  a  qualified  Pilot,  also  be  liable  to  sus- 
pension and  dismissal  by  the  authority  by  which  he  is  licensed. 

oG7.  If  any  person,  by  wilful  misrepresentation  of  circum- 
stances upon  which  tlie  safety  of  a  ship  may  depend,  obtains  or 
endeavours  to  obtain  the  charge  of  such  ship,  such  person,  and 
every  other  person  procuring,  abetting,  or  conniving  at  the  com- 
mission of  such  offence,  shall,  in  addition  to  any  liability  for 
damages  at  the  suit  of  the  party  aggrieved,  incur  a  penalty  not 
exceeding  one  hundred  pounds,  and,  if  the  offender  is  a  qualified 
Pilot  he  shall  also  be  liable  to  suspension  or  dismissal  by  the 
pilotage  authority  by  which  he  is  licensed. 

368.  The  Trinitij  House  may,  in  exercise  of  the  general  power 
hereinbefore  given  to  all  pilotage  authorities  of  doing  certain  things 
in  relation  to  pilotage  matters,  alter  such  of  the  provisions  herein- 
after contained  as  are  expressed  to  be  subject  to  alteration  by  them 
in  the  same  manner,  and  to  the  same  extent,  as  they  might  have 
altered  the  same  if  such  provisions  had  been  contained  in  any 
previous  Act  of  Parliament  instead  of  in  this  Act. 

369.  The  Trinitij  House  shall  continue  to  appoint  Sub- 
Commissioners,  not  being  more  than  five  nor  less  than  three 
in  number,  for  the  purpose  of  examining  Pilots  in  all  districts 
in  which  they  have  been  used  to  make  such  appointments,  and 
may,  with  the  consent  of  Her  Majesty  in  Council,  but  not  other- 
wise, appoint  like  Sub-Commissioners  for  any  other  district  in 
which  no  particular  provision  is  made  by  any  Act  of  Parliament 
or  charter  for  the  appointment  of  Pilots  ;  but  no  pilotage  district 
already  under  the  authority  of  any  Sub-Commissioners  appointed 
by  the  Tn'nitii  House  shall  be  extended,  except  with  such  consent 
as  aforesaid,   nnd    no   Sub-Commissioners    so    .-ippoiuted    shall   be 

()  o  2 


564  MARITIME    LEGISLATION. 

deemed  to    be   pilotage    authorities   within   the   meaning  of  this 

Act. 

370.  The  Triniti/  Home  shall  continue,  after  due  examination 
hv  themselves  or  their  Sub-Commissioners,  to  appoint  and  license 
under  their  common  seal  Pilots  for  the  purpose  of  conducting  ships 
within  the  limits  following,  or  any  portion  of  such  limits ;  (that  is 
to  say), 

(1)  '  The  London  District,'  comprising  the  waters  of  the  Thame!? 

and  Medically  as  high  as  London  Bridge  and  Rochester 
Bridge  respectively,  and  also  the  seas  and  channels 
leading  thereto,  or  therefrom  as  far  as  Orfordness  to  the 
north,  and  Dungeness  to  the  south ;  so  nevertheless  that 
no  Pilot  shall  be  hereafter  licensed  to  conduct  ships 
both  above  and  below  Gravesend  : 

(2)  '  The  English  Channel  District,'  comprising  the  seas  be- 

tween Dungeness  and  the  Isle  of  Wight : 

(0)  '  Trinity  House  Outport  District,'  comprising  any  pilotage 

district  for  the  appointment  of  Pilots  within  which  no 
particular  provision  is  made  by  any  Act  of  Parliament 
or  charter. 

371.  Subject  to  any  alteration  to  be  made  by  the  Trinity  House, 
the  names  of  all  Pilots  licensed  by  the  Trinity  House  shall  be  pub- 
lished in  manner  following;  (that  is  to  say), 

(1)  The  Trinity  House  shall,  at  their  house  in  London,  fix  up  a 

notice  specifying  the  name  and  usual  place  of  abode  of 
every  Pilot  so  licensed,  and  the  limits  within  which  he 
is  licensed  to  act : 

(2)  Tlie  Trinity  House  shall  transmit  a  copy  of  such  notice  to 

the  Commissioners  of  Customs  in  London,  and  to  the 
principal  officers  of  Customs  resident  at  all  ports  within 
the  limits  for  which  such  Pilot  is  licensed ;  and  such 
notice  shall  be  posted  up  by  the  Commissioners  at  the 
Custom-house  in  Tjondon,  and  by  such  officers  at  the 
Custom-houses  of  the  ports  at  which  they  are  respec- 
tively resident. 

372.  Subject  to  any  alteration  to  be  made  by  the  Trinity  House, 
every  Trinilif  Jfonse  I'ilot,  on  his  ii]ipoiiitincnt,  shall  execute  a  bond 


MERCHANT   SHIPPING   ACT,    1854.  5Go 

for  one  hundred  pounds  conditioned  for  the  due  observance  on  his 
part  of  the  regulations  and  bye-laws  of  the  Trinitij  House,  such 
bond  to  be  free  from  stamp  duty,  and  from  any  other  charge, 
except  the  actual  expense  for  preparing  the  same. 

373.  No  qualified  Pilot  who  has  executed  such  bond  as  is 
hereinbefore  mentioned  shall  be  liable  for  neglect  or  want  of  skill 
beyond  its  penalty  and  the  amount  of  pilotage  payable  to  him  in 
respect  of  the  voyage  on  which  he  is  engaged. 

374.  Subject  to  any  alteration  to  be  made  by  the  Trinitij  House, 
no  license  granted  by  them  shall  continue  in  force  beyond  the 
thirty-first  day  of  January  next  ensuing  the  date  of  such  licL'Use ; 
but  the  same  may,  upon  the  application  of  the  Pilot  holding  such 
license,  be  renewed  on  such  thirty-first  day  of  January  in  every 
year,  or  any  subsequent  day,  by  indorsement  under  the  hand  of  the 
Secretary  of  the  Trinity  House,  or  such  other  person  as  may  be 
appointed  by  them  for  that  purpose. 

375.  The  Trinity  House  shall  have  power  to  revoke  or  suspend 
the  license  of  any  Pilot  appointed  by  them,  in  such  manner  and  at 
such  time  as  they  think  fit. 

376.  Subject  to  any  alteration  to  be  made  by  the  Trinity  House, 
and  to  the  exemptions  hereinafter  contained,  the  Pilotage  Districts 
of  the  Trinity  House  within  which  the  employment  of  Pilots  is 
compulsory  are  the  London  District,  and  the  Trinity  House  Outport 
Districts,  as  hereinbefore  defined ;  and  the  Master  of  every  ship 
navigating  within  any  part  of  such  district  or  districts,  who,  after 
a  qualified  Pilot  has  ofi'ered  to  take  charge  of  such  ship,  or  has 
made  a  signal  for  that  purpose,  either  himself  pilots  such  ship, 
without  possessing  a  certificate  enabling  him  so  to  do,  or  employs, 
or  continues  to  employ,  an  unqualified  person  to  pilot  her,  shall  for 
every  such  ofience,  in  addition  to  the  penalty  hereinbefore  specified, 
if  the  Trinity  House  certify  in  writing  under  their  common  seal 
that  the  prosecutor  is  to  be  at  liberty  to  proceed  for  the  recovery 
of  such  additional  penalty,  incur  an  additional  penalty  not  exceeding 
five  pounds  for  every  fifty  tons  burthen  of  such  ship. 

377.  Subject  to  any  alteration  to  be  made  by  the  Trinity  House, 
a  sufiicient  number  of  qualified  Pilots  shall  al\v;i\s  lie  ready  to  take 
charge  of  ships  coming  from  the  westward  past  I)un(jcness ;  and 


6150  MARITIME   LEGISLATION. 

the  Trinifi/  House  shall,  by  Lye-law  to  be  made  in  the  same  manner 
as  other  bye-laws  made  under  the  powers  herein  contained,  make 
such  regulations  with  respect  to  the  Pilots  under  their  control  as 
mav  be  necessary  in  order  to  provide  for  an  unintennitted  supply 
of  qualified  Pilots  for  such  ships,  and  to  insure  their  constant 
attendance  upon  and  due  performance  of  their  duty,  both  by  night 
and  day,  whether  by  cruising  between  the  South  Foreland  and 
Dunr/eness,  or  by  going  off  from  shore,  upon  signals  made  for  the 
purpose,  or  by  both  of  such  means,  or  by  any  other  means,  and 
whether  in  rotation  or  otherwise,  as  the  Trinitif  House  think  fit, 

378.  Subject  to  any  alteration  to  be  made  by  the  Trinltij 
House,  every  Master  of  any  ship  coming  from  the  westward,  and 
bound  to  any  place  in  the  rivers  Tliamos  and  Medvaij  (unless  she 
has  a  qualified  Pilot  on  board,  or  is  exempted  from  compulsory 
pilotage),  shall,  on  the  arrival  of  such  ship  off  Dungeness,  and 
thenceforth  until  she  Las  passed  the  south  buoy  of  the  Brcike,  or  a 
line  to  be  drawn  from  Sandou-n  Castle  to  the  said  buoy,  or  until  a 
qualified  Pilot  has  come  on  board,  display  and  keep  flying  the  usual 
signal  for  a  Pilot ;  and  if  any  qualified  Pilot  is  within  hail,  or  is 
approaching  and  within  half  a  mile,  and  has  the  proper  distin- 
guishing flag  flyijig  in  his  boat,  such  Master  shall,  by  heaving-to 
in  proper  time  or  shortening  sail,  or  by  any  practicable  means 
consistent  with  the  safety  of  his  ship,  facilitate  such  Pilot  getting 
on  board,  and  shall  give  the  charge  of  piloting  his  ship  to  such 
Pilot ;  or  if  there  are  two  or  more  of  such  Pilots  offering  at  the  same 
time,  to  such  one  of  them  as  may,  according  to  the  regulations  for 
the  time  being  in  force,  be  entitled  or  required  to  take  such  charge  ; 
and  if  any  such  Master  fails  to  display  or  keep  flying  the  usual 
signal  for  a  Pilot  in  manner  hereinbefore  required,  or  to  facilitate 
any  such  (junlificd  Pilot  as  aforesaid  getting  on  board  as  herein- 
before required,  or  to  give  the  charge  of  piloting  his  ship  to  such 
Pilot  as  hereinbefore  mentioned  in  that  behalf,  he  shall  incur  a 
penalty  not  exceeding  double  the  sum  which  might  have  been  de- 
manded Ini-  ihc  pildiiigo  of  his  shi]),  such  ])enalty  to  be  paid  to  the 
Triii'dij  llniisr^iiiul  lo  be  i.;irri(,'il  to  \l\v  aeecuiut  ot'tlie  Triiiiiij  Ilnnse 
Pilot  Fun<l. 

U7y.  'I'lic  following  ships,  wlicu  not  currying  passengers,  shall 


MERCHANT   SIIirriNG   ACT,    1854.  507 

be  exempted  from  compulsory  pilotage  in  the  London  District,  and 
in  the  Trinitij  House  Outport  Districts ;  (that  is  to  say), 

(1)  Ships    employed   in   the   coasting   trade   of    the   United 

Kingdom  : 

(2)  Ships  of  not  more  than  sixty  tons  burthen  : 

(o)  Sliips  trading  to  Boulogne^  or  to  any  place  in  Europe  north 

of  Boulogne  : 
(J)  Ships    from    Guernseij^  Jt-rscij,    yildernei/,   Sari-,    or    ]\fan, 

which  are  wholly  laden  with  stone  being  the  produce 

of  those  islands  : 
(5)  Ships  navigating  within  tlie  limits  of  the  port  to  which 

they  belong  : 
(G)   Ships  passing  through  the  limits  of  any  pilotage  district 

on  their  voyages  between  two  places  both  situate  out 

of  such  limits,  and  not  being  bound  to  any  place  within 

such  limits  nor  anchoring  therein.^ 

380.  Subject  to  any  alteration  to  be  made  by  the  Trinity  House 
there  shall  continue  to  be  paid  to  all  Trinitij  House  Pilots,  in 
respect  of  their  pilotage  services,  such  dues  as  are  immediately 
before  the  time  when  this  Act  comes  into  operation  payable  to 
them  in  respect  of  such  services. 

381.  Subject  to  any  alteration  to  be  made  by  the  Trinitij  Ho  use  ^ 
and  notwithstanding  anything  hereinbefore  contained,  there  shall 
be  paid  in  respect  of  all  foreign  ships  trading  to  and  from  the  port 
of  London,  and  not  exempted  from  pilotage,  the  following  pilotage 
dues ;  that  is  to  say,  as  to  ships  inwards,  the  full  amount  of  dues 
for  the  distance  piloted,  and  as  to  ships  outwards  the  full  amount 
of  dues  for  the  distance  required  by  law ;  and  payment  of  such 
pilotage  dues  shall  be  made  to  the  Collector  of  Customs  in  the  port 
of  London  by  some  one  or  more  of  the  following  persons  ;  that  is 
to  say,  the  Master  or  other  person  having  the  charge  of  such  ship, 
or  the  Consignee  or  Agents  thereof  who  have  paid  or  made  them- 
selves liable  to  pay  any  other  charge  for  such  ship  in  the  said  port 
of  London ;    and  such   pilotage   may  be   recovered   in   the  same 

'  Now  Brest.     See  Order  in  Council,  December  21,  1871. 
^  Extended  by  25  &  26  Vict.  c.  6o,  §  41. 


0(58  M.IRITIME   LEGISLATION, 

manner    as    other  pilotage  dues  are  hereinbefore  declared    to  be 
recoverable. 

382.  Subject  to  any  alteration  to  be  made  by  the  Trinitij  House, 
the  said  Collector  of  Customs  shall,  on  receiving  any  pilotage  dues 
in  respect  of  foreign  ships,  give  to  the  person  paying  the  same  a 
receipt  in  writing ;  and  no  officer  of  Customs  in  the  port  of 
London  shall  grant  a  clearance  or  transire  for  any  such  foreign  ship 
as  aforesaid  without  the  production  of  such  receipt ;  and  if  any  such 
attempts  to  go  to  sea  without  such  clearance  or  transire,  any  such 
officer  may  detain  her  until  the  said  receipt  is  produced. 

383.  Subject  to  any  alteration  to  be  made  by  the  Trinitij  House, 
the  said  collector  shall  pay  over  to  the  Trinitij  House  the  pilotage 
dues  received  by  him  in  respect  of  any  foreign  ship  ;  and  the 
Trinitij  House  shall  appl\'  the  same  in  manner  following : 

In  the  first  place,  in  paying  to  any  Pilot  who  may  bring  suffi- 
cient proof  of  his  having  had  the  charge  of  such  ship  such  dues 
as  would  have  been  payable  to  him  for  such  pilotage  service  if 
the  ship  had  been  a  British  ship,  after  deducting  there  from  the 
poundage  due  to  the  Trinitij  House  : 

In  the  second  place,  in  paying  to  any  unlicensed  person  who 
may  bring  sufficient  proof  of  his  having,  in  the  absence  of  a 
licensed  Pilot,  had  the  cliarge  of  such  ship,  such  amount  as  the 
Trinitij  House  may  think  proper,  not  exceeding  the  amount  which 
would  under  similar  circumstances  have  been  payable  to  a  licensed 
Pilot,  after  deducting  poundage  : 

And  lastly,  shall  pay  over  to  the  Trinity  House  Pilot  Fund  the 
residue,  together  with  all  poundage  deducted  as  aforesaid. 

381-.  Whenever  any  difference  arises  between  the  Master  and 
the  qualified  Pilot  of  any  ship  trading  to  or  from  the  port  o^  London 
as  to  her  draught  of  water,  the  Trinitj  .House  shall  upon  applica- 
tion by  either  party,  made,  in  case  of  a  ship  inward  bound,  within 
twelve  hours  after  her  arrival  or  at  some  time  before  she  begins 
to  discharge  her  cargo,  and  in  the  case  of  a  ship  outward  bound 
before  she  (jiiifs  her  moorings,  a])point  some  proper  officer  who 
shall  irieasiiie  ilie  sliip.  ;iii(l  settle  the  difference  accordingly,  and 
there  shall  be  paid  to  the  odicir  measuring  such  ship  by  the  party 
agiiinst  wliom  he  decides,  (he  lollowing  sums;  (that  is  to  say),  one 


MERCHANT   SIIirPING    ACT,    1851.  5G9 

guinea  if  the  sliip  ba  below,  and  half  a  guinea  if  the  ship  be  above 
the  entrance  of  the  London  Bodes  at  Wapimuj. 

385.  Subject  to  any  alteration  to  be  made  by  the  Trinitij  IFonxe, 
there  shall  continue  to  bo  paid  to  them,  and  carried  over  to  the 
Trmitij  House  Pilot  Fund,  the  sums  of  money  following;  (that  is 
to  say), 

(1)  A  poundage  of  sixpence  in  the  pound  upon  the  pilotage 

earnings  of  all  Pilots  licensed  by  the  Triniti/  House  : 

(2)  A  sum  of  three  pounds  three  shillings  to  be  paid  on  the 

first  day   of  January  in   every    year  by  every   person 
licensed  by  the  Trinitij  House  to  act  as  Pilot  in  any 
district    not  nnder    the    superintendence  of   Sub-Com- 
missioners, or  in  any  part  of  such  district : 
And  any  qualified  J'ilot  g'iving  a  false  account  of  his  earnings,  or 
making  default  in  payment  of  any  sum  due  from  him  under  this 
section,  shall  forfeit  double  the  amount  jDayable,  and  shall   fui-ther 
be  liable,  at  the  discretion  of  the   Trinitij  House,  to  suspension  or 
dismissal. 

386.  Subject  to  any  prior  charges  that  may  be  subsisting 
thereon  by  virtue  of  any  Act  or  Acts  of  Parliament  or  otherwise, 
the  said  Trinity  House  Pilot  Fund  shall  be  chargeable  in  the 
first  instance  with  such  expenses  as  the  Tnnity  House  may  duly 
incur  in  performance  of  their  duties  in  respect  of  Pilots  and 
pilotage,  and  after  payment  thereof  shall,  subject  to  any  altera- 
tion to  be  made  by  the  Trinity  House,  be  administered  by  the 
Trinity  House  for  the  benefit  of  such  Pilots  licensed  by  them  after 
the  first  day  of  October  one  thousand  eight  hundred  and  fifty-three 
as  are  incapacitated  for  the  performance  of  their  duty  by  reason  of 
age,  infirmity,  or  accident,  or  of  the  widows  and  children  of  Pilots 
so  licensed,  or  of  such  incapacitated  Pilots  only. 

387.  The  two  corporations  of  the  Trinity  Houses  of  the  ports 
of  Ilullnnd  Netv castle  shaW  continue  to  appoint  Sub-Commissioners, 
not  being  more  than  seven  nor  less  than  three  in  number,  for  the 
purpose  of  examining  Pilots  in  all  districts  in  which  they  have 
been  used  to  make  such  appointments,  and  may,  with  the  consent 
of  Her  Majesty  in  Council,  Init  not  otherwise,  appoint  like  Sub- 
Commissioners  for  any  other  district  situate  within  their  respective 


570  MARITIME  LEGISLATION. 

jurisdictions ;  but  no  pilotage  district  already  under  the  authority 
of  any  Sub-Commissioners  appointed  by  either  of  the  said  Corpo- 
rations shall  be  extended,  except  with  such  consent  as  aforesaid  ; 
and  no  Sub-Commissioners  appointed  or  to  be  appointed  by  the 
Trinity  Houses  of  Ilidl  and  Newcastle  shall  be  deemed  to  be 
pilotage  authorities  within  the  meaning  of  this  Act,  nor  shall  any- 
thino-  in  this  Act  contained  be  held  to  confer  upon  the  commis- 
sioners for  regulating  the  pilotage  of  the  port  of  KiiKjston-vpon- 
Hdll  and  of  the  river  Ilmnher  any  jurisdiction  of  a  different  nature 
or  character  from  that  which  they  have  heretofore  exercised. 

388.  No  Owner  or  Master  of  any  ship  shall  be  answerable  to 
any  person  whatever  for  any  loss  or  damage  occasioned  by  the  fault 
or  incapacity  of  any  qualified  Pilot  acting  in  charge  of  such  ship, 
within  any  district  where  the  employment  of  such  Pilot  is  com- 
pulsory by  law. 

In  the  discussion  of  this  part  of  the  Act  I  would  at 
once  state  that  I  consider  it  imperative  to  do  away  with 
compulsory  pilotage  in  its  present  form  altogether  as  a 
hlot  upon  our  Statute  Book,  and  if  it  is  conceded,  as  I 
hope  it  will  he,  that  the  abuses  Avhich  have  grown  up 
with  the  system  are  such  as  to  admit  of  no  other  remedy, 
it  will  be  clear  that  this  part  of  the  Act  must  be  entirely 
remodelled. 

I  would  here  refer  to  the  remarks  of  Mr.  Lindsay,  in 
his  letter  to  the  President  of  the  Board  of  Trade  in  the 
year  ISGO,  where,  at  page  217,  he  treats  of  this  question  ; 
he,  however,  has  evidently  only  been  struck  by  the  way  in 
which  present  legislation  increases  the  burdens  of  the  ship- 
owner without  perceiving  the  injustice  to  all  which  it  sanc- 
tions and  perpetuates.  He  also  seems  to  use  the  term '  com- 
pulsory pilotage  '  wlicn  s})('akiiig  of  an  obligation  arising 
out  of  a  ])()licv  ol"  insurance;  such  a  use  of  the  term  only 
serves  to  comphcate  the  (piestions,  whicli  seem  to  me  to  be 
tlu'  rollo\vinj:r : — 


MERCHANT   SIIirPING   ACT,   1854.  rul 

(1)  Wlictlier  it  can  continue  to  be  part  of  the  legisla- 

tion of  the  country  that  in  certain  districts 
vessels  shall  not  be  navigated  except  by  a 
duly  licensed  pilot  specially  employed  for  the 
purpose. 

(2)  Whether  the  enactments  by  which  the  employ- 

ment of  such  duly  licensed  pilots  is  regulated 
are  such  as  to  allbrd  complete  and   impartial 
justice  to  all  parties. 
Into    a   separate    consideration   of  the    first  of   these 
questions  I  do  not  })ropose  to  enter  at  any  length,  as  Mr. 
Lindsay   and  others  have  written  ably  and   comprehen- 
sively on  the  subject,  but  some  few  remarks  may  not  be 
out  of  place. 

I  can  never  acknoMdedge  that  a  pilot  ought  to  be,  or 
was  originally  intended  to  be,  more  than  a  help  to  the 
officers  of  the  ship  in  avoiding  the  intricacies  or  dangers 
of  local  navigation.  Of  course,  it  cannot  be  denied  that 
a  master  of  a  vessel  visiting  a  port  for  the  first  time 
cannot  be  so  well  acquainted  with  shoals,  sands,  or 
beacons,  as  one  who  makes  his  livehhood  by  conducting 
vessels  at  all  times  in  that  particular  district ;  on  the 
other  hand,  how  can  such  pilot,  taking  charge  of  a  vessel 
for  the  first  time,  be  as  well  acquainted  as  her  own 
master  with  the  sailing,  steaming,  or  steering  qualities, 
from  a  defective  appreciation  of  which  as  many  accidents 
arise  as  from  any  other  circumstance  ?  There  is,  it  seems 
to  me,  no  reason  whatever  why  a  master  of  a  vessel  who 
has  undertaken  to  perform  a  voyage,  say  from  Sydney  to 
London,  should  be  relieved  of  responsibilit}^  at  any  point 
short  of  either  of  these  places ;  by  all  means  allow  him  to 
make  use  at  any  point  of  such  skilled  assistance  as  may 
present  itself;  but  if,  with  the  knowledge  that  such  assist- 
ance will  doubtless  be  at  his  command,  he  does  not  feel 


572  MARITIME   LEGISLATION. 

equal  to  the  responsibility  of  the  voyage,  it  is  his  fault 
if  he  undertake  it,  and  our  hardy  mariners  would  look 
upon  it  as  an  insult  if  it  were  seriously  suggested  that  they 
could  not  find  their  way  anywhere. 

Tliis  brino-s  me  to  the  second  question  above  pro- 
pounded ;  and  here,  having  felt  severely  the  hardships 
of  the  law  as  it  at  present  stands,  I  must  enter  more 
particularly  into  an  examination  of  the  clauses  in  'he 
Merchant  Shipping  Act  which  have  brought  about  a  st!ite 
of  things  calling,  I  cannot  but  think,  for  a  speedy  and 
effectual  remedy. 

To  make  myself  clear  it  is  necessary  that  I  should  point 
out  the  clauses  and  their  connection. 

By  sections  376  to  379  it  is  made  compulsory  upon 
masters  of  vessels  to  take  on  board  in  certain  localities  the 
first  qualified  pilot  who  shall  offer  his  services ;  by  sec- 
tion 388  it  is  enacted  that  no  owner  or  master  of  a  ship 
shall  be  answerable  to  anj'  person  whatever  for  any  loss 
or  damage  occasioned  by  the  fault  or  incapacity  of  any 
qualified  2^dot  who  has  thus  compulsorily  taken  charge  ; 
section  372  stipulates  that  every  pilot  shall  execute  a  bond 
for  100/. ;  and  section  373  limits  the  amount  recoverable 
from  any  such  pilot  to  the  amount  of  such  bond,  plus  the 
pilotage  payable  to  him  for  the  voyage  on  which  he  was 
eni>a<^ed. 

I  say  in  certain  localities  a  pilot  must  be  employed, 
l)iit  it  must  nut,  therefore,  be  suj^posed  that  at  any  given 
j)lac('  pilotage  must  either  be  or  not  be  compulsory. 
()]i  llie  contrary,  the  two  systems  are  frequently  co- 
existent, and  if  my  illust rations  are  taken  solely  from  the 
London  district,  it  must  not  be  supposed  that  the  evils 
which  are  here  so  patent  may  not  be  equally  felt  in  other 
1)1  aces. 

We    will   Jiow   sui)pO!>e   a  vessel  on  her  voyage   from 


MERCHANT   SIIirriXG    ACT,    1854.  673 

t}io  Mediterranean,  or  elsewhere  in  tlie  world  south  of 
Boulogne,^  to  have  navigated  in  safety  through  the  dangers 
of  the  seas,  through  the  English  Channel  crowded  with 
shipping,  and  to  have  arrived  at  Dungeness. 

Here  her  officers,  if  she  is  bound  for  the  Thames  or 
Medway,  become,  in  the  eye  of  the  law,  suddenly  in- 
capable of  taking  her  any  farther,  and  must  employ  a 
licensed  pilot,  who  is  supposed  to  bring  with  him  such 
consummate  skill  as  to  be  able  to  preserve  the  vessel  from 
dangers,  not  only  below  the  water,  but  above  it,  as  col- 
lisions, &c,,  so  effectually,  that  the  Legislature  has  con- 
sidered itself  justified  in  transferring  to  liim  the  whole 
charge  and  responsibility  for  the  vessel  and  her  cargo. 
Not  so,  however,  should  she  be  destined  for  any  other 
port,  as  Hull,  Newcastle,  &c.  ;  in  such  a  case  the  master 
may,  if  he  chooses,  avail  himself  of  the  services  of  the 
same  pilot,  but  he  still  remains  the  responsible  person  in 
the  event  of  au}^  accident  happening  while  the  j)ilot  is  in 
charge,  he  having  a  remedy  against  the  pilot  to  the  extent 
of  100/.,  which  we  shall  presently  see  is  almost  illusory  ; 
thus  from  a  comparison  of  these  two  cases,  where  the 
vessel  in  one  case  remains  within  the  j^ilotage  district,  in 
the  other  passes  through  it,  it  is  apparent  that  compulsory 
pilotage  is  not  rendered  necessary  by  dangers  of  naviga- 
tion, and  therefore  justice  demands  that  the  two  vessels 
should  be  treated  alike,  at  any  rate  up  to  the  point  where 
their  courses  diverge. 

But  it  may  be  stated  that  when  such  point  is  once 
passed,  no  hardship  remains,  and  it  is  therefore  necessary 
to  produce  further  illustrations,  for  which  purpose  I  must 
look  at  the  Avorking  of  the  Act  as  regards  wholly  un- 
offending parties.  I  will  therefore  suppose  that  my  vessel, 
the  A,  is  bound  down  the  Thames  with  a  cargo  of  mer- 

'  Now  Brest. 


574  MARITIME    LEGISLATIOX. 

cliaiidise  belonging  to  sundry  shippers  in  all  parts  of  the 
kingdom,  and  is  brought  to  an  anchor  in  a  proper  berth 
in  Sea  Eeach  to  wait  for  tide.  While  she  is  lying  there 
motionless,  and  of  course  helpless,  two  steamers  are 
making  their  way  up  to  London ;  one,  the  B,  is  from 
St.  Petersburg,  and  has  taken  a  Trinity  pilot  at  Orfordness, 
the  other,  the  C,  is  from  Odessa,  and  has  taken  a  Trinity 
pilot  at  Dungeness  ;  near  the  Nore  Light,  some  distance 
below  where  my  vessel  is  lying,  their  courses  converge, 
and  from  that  point  upwards  they  proceed  in  the  same 
track,  while  their  tonnage,  draught  of  water,  speed,  and, 
I  may  add,  their  power  of  doing  mischief,  are,  in  all  re- 
spects, absolutely  identical.  One  of  these  steamers  runs 
down  and  sinks  my  vessel  at  her  anchor,  and  my  whole 
property  is  lost ;  will  it  be  credited  that  if  that  steamer  is 
the  B,  I  shall  recover  from  her  owners  every  farthing  of 
my  loss  ;  if  it  is  the  C,  I  shall  recover  nothing  ?  There- 
fore, although  the  pilots  on  board  both  steamers  were 
licensed  by  the  same  authority,  although  the  grossest  in- 
cai>acity  may  be  manifested  by  the  one  in  charge  of  the 
offending  vessel,  and  although  my  ship  was  absolutely 
helpless,  the  Legislature  makes  it  a  matter  of  life  and 
death  to  me  whether  the  steamer  by  which  the  damage 
was  done  cleared  originally  from  St.  Petersburg  or  from 
Odessa ! 

It  may  ]je  said  that  this  is  the  worst  that  can  happen, 
and  tliat  it  is  my  fault  if  I  have  not  covered  myself  by 
assurance.  Altlioiigh  this  ol)jection  would  only  amount 
to  an  argument,  that  what  would  be  an  injustice  towards 
any  other  person  would  be  no  injustice  towards  an  under- 
-writer,  I  shall  proceed  to  show  that  here  also  the  enact- 
ments in  force  are  such  as  to  allow  even  the  most  complete 
fores'iL'lit  to  !)('  Ijiilllcd,  nnd  t]i:i1  no  one  can  ('(rectuall^y  giiai'd 
against  possit)!*'  utter  ruin  IVoiii  iiii;i\'oi(lal)le  casualty. 


MERCHANT  SHIPPING   ACT,   1854.  675 

To  prove  this  certainly  most  serious  assertion,  I  will 
move  my  vessel  higher  up  the  Thames,  and  in  this  case 
she  shall  be  inward  bound,  having  arrived  with  a  cargo 
to  be  discharged  into  lighters  in  the  stream,  A  discharging 
berth  is  pointed  out  l)y  the  harl^our-master,  where  she  is 
moored  between  the  buoys,  and  the  discharge  is  com- 
menced, and  according  to  the  terms  used  in  almost  all 
marine  policies,  the  underwriters  are  answerable  for  all 
damaf]fe  occurrhisf  to  her  uiUil  she  has  been  'moored 
twenty-four  hours  in  good  safety' ;  after  the  expiration  of 
this  period  they  are  absolved  from  all  further  liability. 
In  spite  of  the  position  of  good  safety  into  which  she  has 
been  ordered,  she  is  run  down  and  sunk  by  a  steamer 
which  is  in  charge  of  a  pilot,  and  ha\'iiig  no  recourse 
against  my  underwriters,  I  look  for  redress  to  the  owners 
of  the  steamer. 

Is  it  sufficient  for  me  to  ascertain  whether  she  was 
bound  for  a '  northern  or  southern  port,  say  for  St. 
Petersburg  or  for  Odessa,  as  in  the  last  illustration  ?  By 
no  means,  for  should  she  be  bound  to  the  former  port, 
and  not  on  account  of  her  destination  subject  to  compulsory 
pilotage,  I  may  be  met  with  the  statement  that  she  carried 
passengers,  and  on  that  account  was  so  subjected;  in 
order  to  procure  exemption  on  this  ground  it  is  only 
necessary  to  prove  that  any  one  person  not  belonging  to 
the  crew  was  on  board,  whether  any  fare  had  been  paid 
or  not ;  if  this  can  Ije  sul^stautiated,  the  owners  are  free 
from  aU  liability. 

Thus  utterly  foiled  in  my  attempts  to  obtain  com- 
pensation from  the  owners  of  the  wrong-doing  steamer, 
and  without  recourse  against  my  underwriters,  my  only 
chance  is  to  proceed  against  the  pilot  himself.  It  mi^ht 
at  any  rate  be  supposed  that  the  Legislature,  placino-  in 
his  hands,  as  has  been  shown,  such  enormous  power  of 


570  MARITIME   LEGISLATION". 

inflicting  injury,  and  reducing  liis  liability  to  such  an  in- 
finitesimal amount,  would  have  made  the  remedy  against 
him  simjDle  and  certain.  Such,  however,  is  far  from  being 
the  case,  and  it  is  only  by  an  action  at  common  law, 
at  which  all  the  evidence  required  for  the  original  action 
in  the  Court  of  Admiralty  must  be  reproduced,  that 
any  portion  of  the  100/.  can  be  recovered ;  that  under 
such  circumstances  any  settlement  out  of  Court  mus 
be  preferable  to  an  action  cannot  be  a  cause  of  astonish- 
ment. 

I  may  at  once  state  that  the  illustrations  selected  by 
me  are  not  overdrawn,  but  will  be  found  fully  exemplified 
bv  the  case  of  the  '  Beta,'  which  was  taken  by  me  from 
the  Hidi  Court  of  Admiralty  to  the  Privy  Council.  The 
shorthand-writer's  notes  in  this  case  are  at  the  disposal 
of  all  who  would  like  to  see  the  gross  injustice  which 
is  sanctioned  by  the  law,  as  at  present  laid  down  and 
interpreted. 

The  enactments  in  question  are  open  to  further  ob- 
jection from  the  great  temptation  they  hold  out  to  inte- 
rested parties  to  adopt  the  most  discreditable  devices  to 
evade  responsibility,  and  even  to  have  recourse  to  wilful 
perjury.  In  the  case  of  the  'Beta,'  the  owners  of  that 
steamer  benefited  to  the  extent  of  at  least  5,000/.,  which 
loss  was  thrown  upon  the  owners  and  underwriters  of  the 
Mecklenburg  barque  '  Fides  '  and  her  cargo,  by  the  simple 
fact  that  they  produced  two  persons  who  swore  that  they 
had  been  presented  with  free  passages  ;  surely  generosity 
never  had  a  more  ample  and  immediate  reward ! 

Would  it,  however,  be  going  too  far  to  conjecture 
that  after  such  experience  the  owner  of  a  vessel  would 
tJike  care  to  be  provided  with  a  passenger  for  future 
occasions  ? 

Tills,  however,  is  iml    ihc  worsi    ]),'irf    of  llic  didicidty, 


MERCHANT   SHIPPING    ACT,    18.'54.  577 

as  will  be  clear  when  the  mode  of  procedure  is  considered, 
which  is  as  follows.  My  ship  having,  while  at  anchor,  as 
described  in  the  foregoing  illustrations,  been  run  down 
and  sunk  by  a  steamer,  my  first  care  is  to  ascertain  lliat 
all  the  requirements  of  the  Act  of  Parliament,  as  far  as 
they  apply  to  my  vessel,  were  complied  with.  The  result 
of  my  investigation  being  satisfactory,  after  making  an 
application  to  the  owners  of  the  steamer  for  compensa- 
tion, which  is  at  once  declined,  I  put  my  case  in  the 
hands  of  a  proctor,  who  proceeds  in  the  High  Court  of 
Admiralty  to  prosecute  my  claim.  On  behalf  of  the 
steamer  the  only  plea  is  that  she  was  in  charge  of  a  duly 
licensed  pilot,  employed  by  compulsion  of  law,  and  that 
therefore,  under  the  388th  section,  her  owners  are 
exempt  from  liability,  and  this  plea  succeeds  unless  it  can 
be  proved  by  me  that  the  accident  was  not  solely  due  to 
the  fault  or  incapacity  of  the  pilot,  but  that  the  crew  of 
the  steamer  were  partly  to  blame  by  not  having  properly 
carried  out  the  pilot's  orders. 

But  the  evidence  by  which  alone  I  can  hope  to  prove 
such  an  allegation  must  be  taken  from  the  crew  of  such 
steamer,  or  from  the  uncorroborated  statement  of  the 
pilot  himself,  and,  even  if  it  were  to  the  interest  of  all  the 
witnesses  to  be  truthful,  it  may  be  imagined  how  difficult 
it  would  be  to  obtain  proof  sufficient  from  those  quarters. 
But  it  is  directly  to  the  interest  of  all  to  suppress  tlie 
truth  in  such  a  case  ;  the  crew,  of  course,  will  do  all  they 
can  to  clear  themselves  from  blame,  particularly  where 
by  so  doing  they  clear  their  owners  from  responsibility  ; 
while  the  pilot,  having  to  look  to  the  owners  for  further 
employment,  and  being,  in  very  man}^  instances  at  least, 
engaged  from  year's  end  to  year's  end  by  the  same  firm, 
must  be,  to  say  the  least,  very  sorely  perplexed  if  he  tries 
to  do  what  is  right.     Li  the  first  place,  his  evidence  will 

r  V 


578  MARITIME   LEGISLATION. 

almost  certainly  be  uncorroborated  ;  in  tlie  second  place, 
he  knows  that  if  he  succeeds  in  throwing  the  blame  upon 
the  crew  of  the  steamer,  he  will  be  inflicting  upon  the 
owners  what  may  possibly  be  an  enormous  loss,  and  will 
certainly  expect  to  forfeit  their  patronage;  and,  lastly, 
his  own  liability,  in  the  case  of  a  decision  adverse  to  him- 
self cannot  be  more  than  100/.,  and  is  in  most  cases  nil, 
for  if  lie  has  any  means  at  all,  he  will  almost  certainly  be 
a  member  of  a  Club  which  will  undertake  to  defend  him 
if  any  proceedings  at  common  law  should  really  be  taken 
aorainst  him.  If,  however,  the  owners  of  the  steamer 
agree  to  indemnify  him  against  any  loss,  all  inducement 
for  him  to  speak  the  truth  is  at  an  end,  except  as  be- 
tween his  conscience  and  himself;  while  for  the  owners 
of  the  steamer  a  maximum  sum  of  100/.  is  in  one  scale, 
and  an  unknown  liability  of  many  thousands  may  be  in 
the  other,  and  it  is  not  too  much  to  conclude  therefore 
that  such  a  bargain,  however  corrupt  it  may  be  thought, 
is  not  unlikely  to  have  ere  this  exercised  an  influence  on 
the  decision  of  the  Court  where  such  cases  come  for 
hearing. 

Having  now  stated  at  some  length  my  objections  to 
the  present  system  of  compulsory  pilotage,  I  would  point 
out  that  that  system  can  only  be  defended  by  one  line  of 
arf^ument,  viz.  that  without  it  the  emoluments  of  the 
pilots  would  be  much  curtailed,  and  it  woidd  possibly  not 
be  worth  their  while  to  devote  themselves  wholly  to  the 
business.  This  argument,  however,  cannot  be  suffered  to 
prevail  for  a  moment  when  it  has  once  been  conclusively 
ascertained  that  the  system  in  defence  of  which  it  is  used 
is  in  itself  an  injustice  ;  it  is,  moreover,  clearly  based  upon 
a  fallacy,  as  in  llic  northern  part  of  the  London  district, 
whcfc  ])ilotage  is  not  compulsory,  we  do  nol  licai' of  pilots 
not  ('Mnrni<'  siifricicnl,  lo   rciimiicrjilc   tlicui,  but   I'allicr  of 


MERCHANT   SHIPPING   ACT,   1854.  570 

there  being  numbers  of  unlicensed  men  who  enter  into 
competition  with  them. 

These  men  (watermen,  fishermen,  old  master  mariners, 
or  others),  without  being  in  possession  of  any  lawful 
authority,  offer  their  services  to  any  master  who  may  be 
unacquainted  with  the  part  of  the  coast  which  he  has  to 
navigate,  and  where  the  law  does  not  require  him  to  take 
or  pay  for  a  duly  licensed  pilot. 

These  men  may  be  thoroughly  competent,  but  the 
Legislature  can  never  have  imagined  that  their  enactments 
would  serve  to  create  a  body  of  men  who  would  get  their 
living  by  breaking  the  law,  which  they  now  actually  do, 
even  when,  as  is  frequently  the  case,  they  are  shipped  as 
able  seamen  and  entered  upon  the  articles  as  such. 

Fresh  hardships  have  grown  out  of  this  state  of  things, 
as  will  be  seen  by  an  investigation  into  the  proceedings  of 
the  Gravesend  Borough  Magistrates,  who  have  made  it  a 
practice  to  issue  warrants  on  the  simple  ipse  dixit  of  a 
pilot  against  masters  of  vessels  alleged  to  have  employed 
an  unlicensed  person  within  their  jurisdiction. 

So  soon  as  the  vessel  in  question  is  reported  to  have 
arrived  at  her  place  of  destination,  say,  for  instance, 
Sunderland,  or  some  other  northern  port,  the  warrant  is 
placed  in  the  hands  of  police  officers,  who  proceed  without 
delay  to  arrest  the  master,  bring  him  in  custody  to  Graves- 
end  for  trial,  and  not  unfrequently  the  charge  has  after 
all  been  dismissed  for  want  of  evidence  to  prove  the 
offence. 

The  magistrates,  however,  never  give  costs  against  the 
pilots,  and  thus  the  unfortunate  master  has  to  find  his  way 
back  to  his  vessel,  after  being  mulcted  of  several  pounds 
for  expenses.  If,  then,  the  business  is  so  profitable  as  to 
excite  persons  to  engage  in  it  wlio  have  not  the  powerful 
recommendation  of  the  Trinity  House  license  to  protect 

V  V  2 


580  MARITIME   LEGISLATION. 

tliem,  there  surely  can  be  no  fear  that  the  supply  of  pilots 
wiU  fail. 

Place  the  pilots  under  a  more  stringent  authority  than 
at  present  exists,  so  that  complaints  against  them,  which 
are  now  invariably  referred  to  the  common  law  courts, 
may  be  promptly  investigated  by  the  Trinity  House,  or 
any  other  central  authoritj^,  and  as  severely  punished  as 
complaints  against  masters  and  mates  holding  certificates 
of  competencj^ ;  and  as  a  licensed  pilot,  by  virtue  of  his 
licence,  is  empowered  to  take  charge  of  the  property  of 
parties  who  have  no  other  security  than  their  belief  that 
the  British  Government  will  take  care  to  permit  only  fit 
and  competent  persons  to  be  entrusted  with  a  j^ilot's  license, 
whereas  it  devolves  upon  the  owner  of  the  ship  to  employ 
whatever  master  or  mate  he  chooses,  and  in  whom  he  has 
confidence — I  say,  this  being  the  state  of  the  case,  the 
duly  licensed  pilot  ought  to  be  subject  to  a  more  severe 
law  than  either  masters  or  mates  can  be ;  at  present,  how- 
ever, he  can  offend  with  impunity,  as,  if  you  hesitate  to 
incur  the  expenses  of  legal  proceedings  without  the  hope 
of  any  pecuniary  advantage,  you  have,  virtually,  no  remedy 
against  him. 

I  do  not  wish  to  enter  here  into  any  examination  of 
the  question  of  free-trade  in  pilotage,  nor  will  I  do  more 
tlian  suggest  that  if  the  system  of  licensing  pilots  is  to  be 
continued,  there  can  be  no  reason  why  different  classes  of 
license  should  not  be  adopted,  so  that  every  one  going  on 
board  a  vessel  for  the  purpose  of  taking  charge  of  her,  if 
even  only  to  change  docks,  should  be  provided  with  some 
sort  of  a  license  from  the  central  authority,  a  system  which 
is  very  generally  adopted  on  the  Continent. 

1  repeat  that  all  I  have  desired  to  do  is  to  point  out 
tlic  abuses  of  th(!  ])res('nt  syslciii,  and  I  liave  not  llie  least 
(l(>iil)t  iIkiI  i1i('  fvils  and  tlicir  j'ciiicdy  will  I'cceive  pr()iii2)t 


MERCHANT   SHIPPING   ACT,   1854.  581 

consideration  at  the  hands  of  Her  Majesty's  Govern- 
ment. 

To  tlie  special  clauses  I  have  only  to  add : 

334.  Here,  most  likely,  would  the  order  to  pay  a  fine 
in  cases  of  non-compliance  be  necessary  ;  this  is  the  mode 
in  which,  on  the  Continent,  public  bodies  are  kept  to  their 
duties,  and  it  cannot  be  denied  that  it  has  worked  satis- 
factorily. 

336.  Why  not  give  to  every  person  considering  him- 
self aggrieved  the  right  of  appeal; — how  shall,  for  in- 
stance, as  this  clause  now  stands,  any  foreigner  bring  his 
complaint  before  the  Board  of  Trade  ? 

348.  For  the  reasons  stated  in  my  introductory  remarks 
to  this  part,  I  would  propose  to  punish  this  offence,  and 
every  one  aiding  and  abetting  in  it,  as  a  misdemeanour. 

362.  It  will  be  necessary  to  take  into  most  serious  con- 
sideration, if  the  abolishing  of  compulsory  pilotage  should 
not,  in  cases  of  distress,  justify  the  employment  of  unlicensed 
pilots. 

365.  I  would  propose  to  add  under  number 

(12)  Engages  to  pilot  any  vessel  out  of  his  regular 
turn,  or  makes  attempts  to  enter  into  engagements 
to  that  effect. 

372  and  373.  It  ought  to  be  seriously  considered  if  it 
would  not  be  far  better  to  raise  the  amount  of  bond  re- 
quired, and  insist  upon  substantial  securities  for  its  prompt 
fulfilment,  than  to  retain  the  present  system,  which  has 
worked  so  unsatisfactorily.  Pilots  very  rarely  have  any 
property  when  they  are  called  upon  to  make  good  any 
damage  ;  usually,  everything  they  possess  is  settled  on 
their  families,  and  it  is  next  to  impossible  to  obtain  justice 
from  them  under  the  present  state  of  the  law. 

374.  The  decision  in  the  case  of  the  '  Beta,'  to  which 
I  referred  in  my  introductory  remarks  to  this  part  of  the 


682  MARITIME   LEGISLATION. 

Act,  proves,  beyond  all  question,  tliat  this  clause  requires 
alteration. 

The  31st  of  January  next  following  the  date  of  the 
license  was  undoubtedly  fixed  upon  as  the  term  beyond 
which  no  license  should  continue  in  force,  in  order  to  give 
the  authorities,  viz.  the  officers  of  the  Trinity  House,  the 
Sub-Commissioners  of  Pilotage,  or  the  Collectors  of 
Customs,  a  month's  time  from  the  end  of  every  calendar 
year  to  report  to  the  Trinity  House  any  complaint,  or 
cause  of  complaint,  made,  or  arising,  during  the  previous 
3^ear. 

In  the  case  under  consideration,  the  Judicial  Com- 
mittee decided  that  a  license,  granted  on  January  21 — 
consequently  nine  days  before  the  expiration  of  the  time 
within  which  such  report  might  have  been  sent  in — was 
valid  in  law,  because  a  contrary  construction  would  allow 
certain  districts  to  be  for  days,  or  possibly  for  weeks,  with- 
out any  cpialified  pilots. 

This  interpretation  is  as  unjust  as  erroneous  ;  unjust, 
because  if  the  Trinity  House  had  found  any  difficulty  in 
the  working  of  this  clause,  it  might  have  given  due  notice 
of  the  necessity  of  an  alteration,  and  until  such  notice 
had  been  given  the  public  had  a  right  to  consider  the  plain 
words  of  the  enactment  in  fuU  force  ;  and  erroneous, 
because  it  is  impossible  to  believe  that  if  the  Legislature 
meant  to  give  thirty-one  days  for  lodging  complaints,  any 
judicial  tiihimal  could  have  it  in  their  power  to  reduce 
such  period  by  one-third.  If  the  words  of  the  clause 
were  not  to  be  interpreted  literally,  any  pilot,  knowing 
that  complaints  likely  to  lead  to  the  suspension  of  his 
license  were  in  contemplation,  would  be  sure  to  be  the 
first  to  interpret  the  decision  in  his  favour,  and  present  his 
license  lor  renewal  on  any  day  before  the  time  fixed  by 
liw  for  such  renewal,  viz.  laiiuary  31. 


MERCHANT  SHIPPING   ACT,   1854.  583 

The  want  of  qualified  Pilots  could  easily  be  avoided 
by  grantiii,^  interim  certificates,  to  serve  only  for  the  time 
durinsr  which  the  license  was  left  for  renewal. 

375.  I  think  the  manner  in  which  the  revocation  or 
suspension  of  Pilots'  Licenses  is  to  take  place  ought  here 
to  be  distinctly  stated. 

37G-oT9.  These  clauses  will  require  very  material 
alteration  if  my  suggestions  are  adopted. 

Part  VIII. —  Wreds,  Casualties,  and  Salvage. 

432.  In  any  of  the  cases  following  ;  (that  is  to  say), 
Whenever  any  ship  is  lost,  abandoned,  or  materially  damaged 

on  or  near  the  coasts  of  the  United  Kingdom  ; 
Whenever  any  ship  causes  loss  or  material  damage  to  any  other 

ship  on  or  near  such  coasts ; 
Whenever  by  reason  of  any  casualty  happening  to  or  on  board 

of  any  ship  on  or  near  such  coasts  loss  of  life  ensues ; 
Whenever  any   such  loss,  abandonment,  damage,  or  casualty 
happens  elsewhere,  and  any  competent  witnesses  thereof 
arrive,  or  are  found  at  any  place  in  the  United  King- 
dom ; 
It  shall  be  lawful  for  the  inspecting  officer  of  the  Coastguard,  or 
the  principal  officer  of  Customs,  residing  at  or  near  the  place  where 
such  loss,  abandonment,  damage,  or  casualty  occurred,  if  the  same 
occurred  on  or  near  the  coast  of  the  United  Kingdom,  but  if  else- 
where, at  or  near  the  place  where  such  witnesses  as  aforesaid  arrive 
or  are  found,  or  can  be   conveniently  examined,  or  for  any  other 
person  appointed  for  the  purpose  by  the  Board  of  Trade  to  make 
inquiry,  respecting  such  loss,  abandonment,  damage,  or  casualty  ; 
and  he  shall,  for  that  pur}X)se,  have  all  the  powers  given  by  the 
First  Part  of  this  Act  to  inspectors  appointed  by  the  said  Board. 

I  would  surri?est  to  make  these  inquiries  alwavs  com- 
pulsory  by  simply  cancelling  the  words  '  It  shall  be  lawful.' 
It  is  evident  that  if  any  unfair  dealing  with  a  ship  has 


5&4  MARITIME  LEGISLATION. 

taken  place,  the  crew  are  most  ready  to  confess  tlie  trntli 
soon  after  they  have  Landed,  and  if  one  of  the  two  officers 
referred  to  in  this  clause  is  obliged  immediately  to  insti- 
tute an  inquiry,  the  execution  of  the  protest,  which  is 
always  urged  forward  by  the  master  with  all  possible 
despatch,  will  be  postponed,  and  the  whole  truth  will  be 
more  likely  to  come  out ;  but  as  the  clause  now  stands 
Coastguard  or  Customs'  Officials  generally  find  a  reason 
for  avoiding  to  act  on  their  own  responsibility,  and  by  a 
reference  to  the  Board  of  Trade  much  time  is  unnecessarily 
lost,  and,  as  in  the  case  of  the  '  Trial '  (above  referred  to), 
one  or  other  of  the  principal  witnesses  may  have  been 
sent  away  in  order  to  prevent  his  cross-examination. 

433.  If  it  appears  to  sucli  officer  or  person  as  aforesaid,  either 
upon  or  without  any  such  preliminary  inquiry  as  aforesaid,  tliat  a 
formal  investigation  is  requisite  or  expedient,  or  if  the  Board  of 
Trade  so  directs,  he  shall  apply  to  any  two  justices  or  to  a  stipen- 
diary magistrate  to  hear  the  case ;  and  sucli  justices  or  magistrate 
shall  thereupon  proceed  to  hear  and  try  the  same,  and  shall  for 
that  purpose,  so  far  as  relates  to  the  summoning  of  parties,  com- 
pelling the  attendance  of  witnesses,  and  the  regulation  of  the  pro- 
ceedings, have  the  same  powers  as  if  the  same  were  a  proceeding 
relating  to  an  offence  or  cause  of  complaint,  upon  which  they  or 
he  have  power  to  make  a  summary  conviction  or  order,  or  as  near 
thereto  as  circumstances  permit ;  and  it  shall  be  the  duty  of  such 
officer  or  person  as  aforesaid  to  superintend  the  management  of  the 
case,  and  to  render  such  assistance  to  the  said  justices  or  magistrate 
as  is  in  his  power ;  and,  upon  the  conclusion  of  the  case,  the  said 
justices  or  magistrate  shall  send  a  report  to  the  Board  of  Trade, 
containing  a  full  statement  of  the  case  and  of  their  or  his  opinion 
thereon,  accompanied  by  such  report  of  or  extracts  from  the  evi- 
dence, and  such  observations  (if  any)  as  they  or  he  may  think  fit. 

Besides  the  Stipendiary  Magistrates,  the  County  Court 
Judges,  T  iui.'igiiic,  would  be  more  fitlo  coiulncl  llic  ollicial 


MERCHANT   SHIPPING   ACT,   1854.  585 

iiK|iiiries  here  under  consideration  tlian  any  two  Justices 
of  the  Peace,  and  I  woukl  suggest  the  substitution  of  them 
for  the  hitter. 

435.  In  places  where  there  is  a  Local  Marine  Board,  and  where 
a  stipendiary  magistrate  is  a  member  of  such  Board,  all  such  inves- 
tigations as  aforesaid  shall,  whenever  he  happens  to  he  present,  be 
made  before  such  magistrate  ;  and  there  shall  be  paid  to  such  ma- 
gistrate in  respect  of  his  services  under  this  Act,  such  remuner- 
ation, whether  by  way  of  annual  increase  of  salary,  or  otherwise, 
as  Her  Majesty's  Secretary  of  State  for  the  Home  Department, 
with  the  consent  of  the  Board  of  Trade,  may  direct ;  and  such 
remuneration  shall  be  paid  out  of  the  Mercantile  Marine  Fund. 

The  same  remuneration  shouhl  be  given  to  the  County 
Court  Judges  as  is  to  be  paid  to  the  Stipendiary  Magis- 
trates. 

439.  The  Board  of  Trade  shall  throughout  the  United  King- 
dom have  a  general  superintendence  of  all  matters  relating  to 
wreck  ;  and  it  may,  with  the  consent  of  the  Commissioners  of  Her 
Majesty's  Treasury,  appoint  any  officer  of  Customs  or  of  the  Coast- 
guard, or  any  officer  of  Inland  Revenue,  or,  when  it  appears  to  such 
Board  to  be  more  convenient,  any  other  person,  to  be  a  receiver  of 
wreck  in  any  district,  and  to  perform  such  duties  as  are  hereinafter 
mentioned,  and  shall  give  due  notice  of  every  such  appointment. 

The  usefulness  of  Eeceivers  \Yhenever  they  are  nothing 
but  public  officers  has  been  most  effectually  proved  by  my 
own  experience  in  all  matters  where  I  have  come  in 
personal  contact  with  them,  and  applied  for  their  assist- 
ance in  conformity  with  sections  6  and  14  of  their  Instruc- 
tions. It  is  a  very  difTerent  matter,  however,  when  any 
other  person  acts  as  Eeceiver,  as  local  and  personal  in- 
terests are  almost  invariably  so  powerful  as  to  prevent  his 
actimj  with  vicfour  and  efficiencv.     For  this  reason  I  am 


58G  MARITIME   LEGISLATION. 

of  opinion  tliat  officers  of  Customs  or  Coastguard  should 
always  be  chosen  where  joracticable. 

441.  "^Tienever  any  ship  or  boat  is  stranded  or  in  distress  at 
auv  place  on  the  shore  of  the  sea,  or  of  any  tidal  water  within  the 
limits  of  the  United  Kingdom,  the  receiver  of  the  district  within 
which  such  place  is  situate  shall,  upon  being  made  acquainted  with 
such  accident,  forthwith  proceed  to  such  place,  and  upon  his  arrival 
there  he  shall  take  the  command  of  all  persons  present,  and  assign 
such  duties  to  each  person,  and  issue  such  directions,  as  he  may 
think  fit  with  a  view  to  the  preservation  of  such  ship  or  boat,  and 
the  lives  of  the  persons  belonging  thereto,  and  the  cargo  and  ap- 
parel thereof;  and  if  any  person  wilfully  disobey  such  directions, 
he  shall  forfeit  a  sum  not  exceeding  fifty  pounds  ;  but  it  shall  not 
be  lawful  for  such  receiver  to  interfere  between  the  Master  of  such 
ship  or  boat  and  his  Crew  in  matters  relating  to  the  management 
thereof,  unless  he  is  requested  so  to  do  by  such  Master. 

The  last  part  of  this  clause  has  been  read  as  if  the 
Board  of  Trade  intended  to  withhold  the  Eeceiver's  inter- 
ference in  any  case  where  the  master  of  a  ship  does  not 
actually  desire  the  same,  whereas,  it  is  evident  that  it  was 
only  meant  to  leave  the  disciphne  of  the  ship's  crew  in  the 
master's  hands. 

A  more  distinct  interpretation  of  this  clause  is  of  the 
utmost  necessity,  as  the  clear  instructions  issued  to  the 
Eeceivers  prove  that  they  are  intended  to  assist  any  master 
who  may  Ijc  in  distress  in  such  a  manner  that  the  interests 
of  the  owners  of  the  ship  and  cargo  and  their  underwriters 
may  not  be  jeopardised  by  the  slippery  advice  only  too 
often  given  by  parties  whose  profits  would  be  seriously 
diminished  if  these  interests  were  promptly  and  efficiently 
protected. 

The  case  of  the  '  Jeanne,'  at  Maryport,  is  one  in  point ; 
li;i(l  lir-r  master  not  been  advised  that  he  had  nothing  to 
do  willi  the  Iteceiver,  a  very  diiferent  icsiilt   would  have 


MERCHANT   SHIPPING   ACT,   1854.  587 

been  obtained  ;  as  it  turned  out,  I  had  to  be  grateful  that 
the  exertions  of  the  lleceiver,  Mr.  Lindsay,  exposed  the 
conduct  of  the  parties  concerned,  and  the  reports  made 
by  that  gentleman  in  this  case  to  the  Board  of  Trade  will 
be  found  to  throw  much  light  npon  the  practices  so  rife 
in  many  of  our  outports. 

448.  Any  receiver,  or  in  liis  absence  any  justice  of  the  peace, 
shall,  as  sooq  as  conveniently  may  be,  examine  upon  oath  (which 
oath  they  are  hereby  respectively  empowered  to  administer)  any 
person  belonging  to  any  ship  which  may  be  or  may  have  been  in 
distress  on  the  coast  of  the  United  Kingdom,  or  any  other  person 
who  may  be  able  to  give  any  account  thereof,  or  of  the  cargo  or 
stores  thereof,  as  to  the  following  matters ;  (that  is  to  say), 

(1)  The  name  and  description  of  the  ship  ; 

(2)  The  name  of  the  master  and  of  the  owners  ; 

(3)  The  names  of  the  owners  of  the  cargo  ; 

(4)  The  ports  or  places  from  and  to  which  the  ship  was  bound  ; 

(5)  The  occasion  of  the  distress  of  the  ship  ; 
(G)  The  services  rendered ; 

(7)  Such  other  matters  or  circumstances  relating  to  such  ship, 
or  to  cargo  on  board  the  same,  as  the  receiver  or  justice 
thinks  necessary ; 

And  such  receiver  or  justice  shall  take  the  examination  down  in 
writing,  and  shall  make  two  copies  of  the  same,  of  which  he  shall 
send  one  to  the  Board  of  Trade,  and  the  other  to  the  secretary  of 
the  committee  for  managing  the  affairs  of  Lloyd's  in  London,  and 
such  last-mentioned  copy  shall  be  placed  by  the  said  secretary  in 
some  conspicuous  situation  for  the  inspection  of  persons  desirous  of 
examining  the  same ;  and  for  the  purposes  of  such  examination 
every  such  receiver  or  justice  as  aforesaid  shall  have  all  the  powers 
given  by  the  First  Part  of  this  Act  to  inspectors  appointed  by  the 
Board  of  Trade. 

Here  I  may  refer  to  a  memorial  which  was  drawn  up 
by  me  as  far  back  as  the  spring  of  18G4,  and  presented  to 
the  Board  of  Trade  with  the  signatures  of  the  Salvage 


588  MAr.ITIME   LEGISLATION. 

Association  of  Lloyd's  and  of  otlier  parties  interested  in 
such  Cjuestions.^  We  therein  urged  the  necessity  of  in- 
sisting that  these  depositions  should  be  made  not  only  by 
British  but  by  foreign  masters,  and  within  twenty-four 
hours  of  arrival ;  it  is  exaggeration  to  state  that  the 
masters  are  so  urgently  employed  after  arrival  at  any  place 
in  distress  that  they  are  entirely  unable  to  find  time  for 
appearing  before  the  Eeceiver  to  make  the  depositions, 
which  when  promptly  taken  have  often  proved  to  be  of 
the  very  utmost  importance  to  the  parties  concerned. 

But  the  fact  is  that  immediate  action  on  the  part  of 
the  Eeceiver  to  secure  a  statement  of  the  principal  occur- 
rences dunng  the  voyage  prevents  unscrupulous  masters 
from  concocting  average  claims  upon  the  parties  who  are 
unfortunately  tied  up  with  them,  and,  in  order  to  avoid 
this,  the  only  efficient  remedy  against  such  irregularities, 
all  sorts  of  excuses  are  brought  forward  ;  nay,  a  former 
Eeceiver  used  to  plead  as  a  reason  for  the  impossibility  of 
obtaining  these  depositions  from  foreigners  that  he  could 
not  understand  their  lan(?uao:es  and  he  would  not  be  able 
to  obtain  willingly  the  assistance  of  an  efficient  interpreter. 
I  imagine  that  if  the  Board  of  Trade  adopts  the  suggestion 
of  the  memorial  above  referred  to,  means  will  be  found  to 
secure  through  the  consular  officers  the  attendance  of  an 
interpreter,  and  in  case  of  an  isolated  refusal  energetic 
steps  should  be  taken  to  obtain  the  desired  amendment. 

Sometimes  I  have  been  met  in  collision  cases  with  the 
observation  that  the  statements  contained  in  these  deposi- 
tions were  only  used  to  the  detriment  of  the  parties  making 
them.  Xovv  it  is  evident  that  they  prevent  the  subsequent 
settijig  up  (jf  untruthful  assertions,  and  for  this  reason 
al<jne  I  mainlaiii   tliat  they  are  for  the  public  good,  and 

1  Viilc  p.  G55. 


MERCHANT   SIIIPriNG   ACT,    1854  689 

when  made  by  both  sides  can  be  more  easily  compared 
than  at  any  later  period. 

I  admit  that  injustice  might  be  committed  if  in  a  case 
of  collision  the  deposition  of  one  side  were  to  Ije  published 
before  that  of  the  other  had  been  made ;  this  difficulty 
will,  however,  doubtless  disappear  when  my  suggestion 
for  taking  all  depositions  within  twenty-four  hours  after 
arrival  is  adopted.  But  there  could  be  no  objection  to  an 
enactment  that  in  cases  of  collision  the  depositions  of  both 
sides  shall  be  published  simultaneously. 

Would  it  not  be  a  material  assistance  to  the  Receiver 
if  leave  were  given  for  any  party  interested  to  attend  the 
taking  of  the  depositions,  and  to  be  at  liberty  to  suggest 
such  questions  as  he  may  think  fit  ? 

449.  Any  examination  so  taken  in  writing  as  aforesaid,  or  a 
copy  thereof,  purporting  to  be  certified  under  the  hand  of  the  re- 
ceiver or  justice  before  whom  such  examination  was  taken,  shall 
be  admitted  in  evidence  in  any  Court  of  justice,  or  before  any  per- 
son having  by  law  or  by  consent  of  parties  authority  to  hear, 
receive,  and  examine  evidence,  as  irrimd  facie  proof  of  all  matters 
contained  in  such  written  examination. 

The  Court  of  Admiralty  has  objected  to  admit  copies 
of  Eeceivers'  depositions  as  evidence  ;  how  that  is  possible 
under  this  clear  enactment  I  am  unable  to  conceive,  but 
the  matter  is  so  important  that  particular  inquiry  ought 
to  be  made  into  it.  I  have  nwself  been  obliged  to  subpoena 
Eeceivers  from  various  parts  of  the  coast  for  the  production 
of  original  depositions  in  some  Admiralty  suits,  in  order  to 
avoid  the  objection  that  copies  were  no  evidence ;  now 
this  is  clearly  against  the  meaning  of  this  clause.^ 

^  This  section  has  since  been  repealed  by  39  &  40  Vict.  c.  80,  Sch., 
Part  I. 


590  MARITIME   LEGISLATION. 

450.  The  following  rules  shall  be  observed  by  any  person  find- 
ing or  taking  possession  of  wreck  within  the  United  Kingdom  ; 
(that  is  to  say), 

(1)  If  the  person  so  finding  or  taking  possession  of  the  same 

is  the  Owner,  he  shall  as  soon  as  possible  give  notice  to 
the  receiver  of  the  district  within  which  such  wreck  is 
found,  stating  that  he  has  so  found  or  taken  possession 
of  the  same ;  and  he  shall  describe  in  such  notice  the 
marks  by  which  such  wreck  is  distinguished : 

(2)  If  any  person  not  being  the  Owner  finds  or  takes  posses- 

sion of  any  wreck,  he  shall  as  soon  as  possible  deliver 
the  same  to  such  receiver  as  aforesaid  : 
And  any  person  making  default  in  obeying  the  provisions  of 
this  section  shall  incur  the  following  penalties ;  (that  is  to  say), 

(3)  If  he  is  the  Owner  and  makes  default  in  performing  the 

several  things  the  performance  of  which  is  hereby  im- 
posed on  an  Owner, 

He  shall  incur  a  penalty  not  exceeding  one  hundred  pounds : 

(1)  If  he  is  not  the  Owner  and  makes  default  in  performing 
the  several  things  the  performance  of  which  is  hereby 
imposed  on  any  person  not  being  an  0\\Taer, 

He  shall  forfeit  all  claim  to  salvage  : 

He  shall  pay  to  the  Owner  of  such  wreck,  if  the  same  is  claimed, 
but  if  the  same  is  unclaimed,  then  to  the  person  entitled 
to  such  unclaimed  wreck,  double  the  value  of  such 
wreck  (such  value  to  be  recovered  in  the  same  way  as  a 
penally  of  like  amount)  ;  and 

He  shall  incur  a  penalty  not  exceeding  one  hundred  pounds. 

The  case  of  the  '  North '  shows  that  it  is  not  only  neces- 
sary to  make  the  pnnislmients  for  the  offences  described 
niidcr  this  clause  more  severe,  but  that  in  all  counties 
haviii'/  partly  a  seafaring  population,  the  Bench  will  not  be 
very  easily  induced  to  return  a  conviction  or  even  a  com- 
mittal under  such  ciiTumstances  ;  and  in  order  to  avoid 
Ihe  re])roaches  wliich  have  so  frequently  emanated  fi-oin 
FoHii'm  rjovenniieiils,  il  would  be  advisable,  Avherever  no 


MERCHANT  SIIIPPrNG   ACT,   1854.  Cni 

Stipendiary  Magistrate  exists  to  make  the  County  Court 
Judges  the  committing  magistrates,  and  to  remove  the 
trial  of  such  cases  to  the  Central  Criminal  Court,  making 
it  obligatory  u^jon  the  Judge  of  the  Admiralty  Court  to 
attend  such  trials,  in  order  to  satisfy  everybody  that  not 
only  nothing  but  the  strictest  possible  justice  is  required, 
but  that  the  Bench  is  in  possession  of  sufficient  knowledge 
of  Maritime  Law. 

I  would  further  suggest  in  those  parts  of  the  coast 
where  irregularities  similar  to  those  of  the  '  North  '  have 
come  to  light,  to  make  more  frequent  changes  in  the 
Coastguard,  who  in  fact  are  the  real  officials  upon  whom 
alone  the  Eeceiver  can  depend  for  information  ;  and  if 
retained  too  long  in  one  place  will  only  too  easily  enter 
into  connections  with  fishermen  and  others,  who  require 
the  greatest  supervision. 

451.  If  any  receiver  suspects  or  receives  information  tliat  any 
wreck  is  secreted  or  in  tbe  possession  of  some  person  who  is  not 
the  owner  thereof,  or  otherwise  improperly  dealt  with,  he  may 
apply  to  any  justice  of  the  peace  for  a  warrant,  and  such  justice 
shall  have  power  to  grant  a  warrant,  by  virtue  whereof  it  shall  be 
lawful  for  the  receiver  to  enter  into  any  house  or  other  place, 
wherever  situate,  and  also  into  any  ship  or  boat,  and  to  search  for, 
and  to  seize  and  detain,  any  such  wreck  as  aforesaid  there  found ; 
aud  if  any  such  seizure  is  made  in  consequence  of  information  that 
may  have  been  given  by  any  person  to  the  receiver,  the  informer 
shall  be  entitled  by  way  of  salvage  to  such  sum,  not  exceeding  in 
any  case  five  pounds,  as  the  receiver  may  allow. 

^Miere  there  are  no  Stipendiary  Magistrates,  I  would 
here  also  empower  the  County  Court  Judges  to  grant 
warrants. 

452.  Everv  receiver  shall  within  fortv-eight  hours  after  takinci- 
possession  of  any  wreck  cause  to  be  posted  up  in  the  Custom-house 
of  the  port  nearest  the  place  where  such  wreck  was  found  or  seized, 


592  MARITIME   LEGISLATION. 

a  description  of  the  same,  and  of  any  marks  by  vvliich  it  is  dis- 
tino-uislied,  and  shall  also,  if  the  value  of  such  wreck  exceeds 
twenty  pounds,  but  not  otherwise,  transmit  a  similar  description  to 
the  secretary  of  the  committee  at  LloycVs  aforesaid ;  and  such  secre- 
tary shall  post  up  the  description  so  sent,  or  a  copy  thereof,  in  some 
conspicuous  place,  for  the  inspection  of  all  persons  desirous  of 
examining  the  same. 

The  Eeceiver  ought  to  give  to  Lloyd's  notice  of  any 
wreck  irrespective  of  its  value,  as  undoubtedly  such 
information  would  often  lead  to  further  inquiries,  by 
which  losses  previously  unknown  would  come  to  light. 

460.  Disputes  with  respect  to  salvage  arising  within  the 
boundaries  of  the  Cinque  Ports  shall  be  determined  in  the  manner 
in  which  the  same  have  hitherto  been  determined  ;  but  whenever 
any  dispute  arises  elsewhere  in  the  United  Kingdom  between  the 
owners  of  any  such  ship,  boat,  cargo,  apparel,  or  wreck  as  afore- 
said, and  the  salvors,  as  to  the  amount  of  salvage,  and  the  parties 
to  the  dispute  cannot  agree  as  to  the  settlement  thereof  by  arbitra- 
tion or  otherwise, 

Then  if  the  sum  claimed  does  not  exceed  two  hundred 
pounds, 

Such  dispute  shall  be  referred  to  the  arbitration  of  any  two 
justices  of  the  peace  resident  as  follows ;  (that  is  to  say)  : 

In  case  of  wreck,  resident  at  or  near  the  place  where  such  wreck 
is  found  : 

In  case  of  services  rendered  to  any  ship  or  boat,  or  to  the 
persons,  cargo,  or  apparel  belonging  thereto,  resident  at  or  near 
the  place  where  such  ship  or  boat  is  lying,  or  at  or  near  the  first 
port  or  place  in  the  United  Kingdom  into  which  such  ship  or  boat 
is  brought  after  the  occurrence  of  the  accident  by  reason  whereof 
the  claim  to  salvage  arises  : 

But  if  the  sum  claimed  exceeds  two  hundred  pounds, 

Such  dispute  may,  with  the  consent  of  the  parties,  be  referred 
to  the  arbitration  of  such  justices  as  aforesaid,  but  if  they  do  not 
consent,  shall  in  Ewjliivd  be  decided  by  the  High  Court  of  Admi- 
ralty r)f  E'ikjJiiikI,  ill    lirhiiifl  Iiy  the  lligli  Court  of  Admiralty  of 


MERCHANT   SIIIPPIXG    ACT,    1854.  503 

Ireland^  and  in  Scothtiid  by  tho  CiHirt  of  Session  ;  subject  to  this 
proviso,  tliat  if  the  claimants  in  such  dispute  do  not  recover  in 
such  Court  of  Admiralty  or  Court  of  Session  a  gi'eater  sum  than 
two  hundred  pounds,  they  shall  not,  unless  the  court  certifies  that 
the  case  is  a  fit  one  to  be  tried  in  a  superior  court,  recover  any 
costs,  charges,  or  expenses  incurred  by  them  in  the  prosecution  of 
their  claim  : 

And  every  dispute  with  respect  to  salvage  may  be  heard  and 
adjudicated  upon  on  the  application  cither  of  tlie  sah^or  or  of  the 
Owner  of  the  property  salved,  or  of  their  respective  agents. 

IGI.  Whenever,  in  pursuance  of  this  Act,  any  dispute  as  to 
salvage  is  referred  to  the  arbitration  of  two  justices,  they  may 
either  themselves  determine  the  same,  with  power  to  call  to  their 
assistance  any  person  conversant  with  maritime  affairs  as  assessor, 
or  they  may,  if  a  difference  oi'  opinion  arises  between  them,  or 
without  such  difference,  if  they  think  fit,  appoint  some  person 
conversant  with  maritime  affairs  as  umpire  to  decide  the  point  in 
dispute ;  and  such  justices  or  their  umpire  shall  make  an  award  as 
to  the  amount  of  salvage  payable  within  the  following  times;  that 
is  to  say,  the  said  justices  within  forty-eight  hours  after  such  dispute 
has  been  referred  to  them,  and  the  said  umpire  within  forty-eight 
hours  after  his  appointment,  with  power  nevertheless  for  such 
justices  or  umpire  by  writing  under  their  or  his  hands  or  hand  to 
extend  the  time  within  which  they  and  he  are  hereby  respectively 
directed  to  make  their  or  his  award.' 

These  clauses  are  undoubtedly  among  the  most  im- 
portant of  the  whole  Act;  and  althougli  framed  with 
the  best  possible  intention  to  avoid  litigation,  have  proved 
the  most  vexatious,  through  the  interpretation  oiven  to 
them. 

The  working  of  the  first  clause  is  threefold,  viz. : 

a.  That  the  jurisdiction  of   the    '  Connnissioners 
of  Salvage '  for  the  Cinqlie  Ports,  as  regulated   by 

1  The  summary  jurisdiction  in  small  salvage  cases  is  extended  by  25  &  26 
Vict.  c.  m,  sec.  49.     (See  p.  607.) 

Q  Q 


594  MARITIME   LEGISLATION. 

the   1   &    2    George  IV.   cap.   126,    remains    in  full 

force  ; 

b.  That  elsewhere  in  Great  Britain,  claims  not 
exceedino-  200/.  shall  be  referred  to  the  arbitration 
of  any  two  Justices  of  the  Peace  ; 

c.  That  claims  exceeding  200/.  shall  be  decided 
by  the  proper  Maritime  Court,  with  the  proviso — if 
claimants  do  not  recover  a  greater  sum  than  200/. 
they  shall  not  recover  costs  unless  certified  by  the 
Court. 

Now  what  has  been  the  practical  result  of  these  enact- 
ments ? 

ad  a.  With  respect  to  the  Cinque  Ports  Commissioners, 
that  their  decisions  (especially  at  Eamsgate  and  Deal) 
have  been  so  partial  to  the  fishermen  that  nobody  but  an 
innocent  foreigner,  who  is  not  cautioned  as  to  the  risk  he 
runs  by  allowing  a  matter  to  be  referred  to  them,  will 
ever  submit  to  their  arbitration. 

ad  h.  The  same  objection  is  made  to  the  decisions 
of  two  Justices  of  the  Peace,  who  are  in  general  so  in- 
timately connected  with  the  interests  of  their  county, 
and  frequently  so  imperfectly  acquainted  with  matters 
brought  before  them,  that  their  awards  are  hardly  ever 
satisfactory. 

ad  c.  The  praise  which  the  late  venerable  Judge  of 
the  Admiralty  Court  ^  has  frequently  from  the  Bench 
bestowed  upon  the  fishermen,  and  the  positive  disinclina- 
tion which  he  has  generally  evinced  to  refuse  certifying 
the  claimant's  costs  even  in  the  most  flagrant  cases  (I  may 
only  refer  to  the  case  of  the  '  Adolph  Michels,'  where  costs 
were  certified  with  an  award  of  only  50/.),  have  made  it 
a  usual  practice  for  salvors'  agents  (their  solicitors  or 
proctors)  to  institute,  without  any   alk'nq)ts   at   previous 

'   ]  >r.  Lusliin;'l()ii. 


MERCHANT    RIIIPPIXG    ACT,    l^o4.  595 

SGttlement,  Aolmiralty  proceedings  ;  for,  as  they  can  reckon 
with  comparative  certainty  upon  getting  their  costs  what- 
ever may  be  the  award,  tliey  will  only  consent  to  a  com- 
promise out  of  court  when,  from  fear  of  the  heavy  ex- 
penses, an  amount  quite  out  of  proportion  to  the  value  of 
the  services  is  offered. 

Such  vexatious  and  very  expensive  proceedings  can 
only  be  avoided  by  positively  enacting  that  noljody  shall 
obtain  costs  in  court  who  does  not  receive  a  judgment 
for  at  least  200/. ;  and  further  by  doing  away  with  all 
arbitrations  by  Commissioners  and  Justices  of  the  Peace, 
appointing  in  their  stead  the  Stipendiary  Magistrates  and 
County  Court  Judges,  two  Elder  ]3retliren  of  the  Trinity 
House  to  be  called  in  as  Nautical  Assessors  at  the  request 
of  either  party. 

These  would  be  cheap  and  eminently  efficient  Tribunals, 
which  would  very  soon  convince  everybody  abroad  that 
our  Legislature  will  see  justice  done  to  ever^^body  coming 
to  our  shores. 

I  may  mention  that  the  reason  why  the  Commissioners, 
&c.,  have  given  so  little  satisfaction  in  deciding  salvage 
differences,  is  simply  that  in  the  majority  of  cases  each 
Commissioner  takes  up  the  position  of  advocate  of  the 
side  by  which  he  is  appointed,  or  rather  selected,  and  after 
a  long  delay,  they  agree  rather  to  divide  the  difference 
between  them  than  to  submit  the  case  to  an  umpire  ; 
therefore,  whenever  the  salvors'  agent  is  sufHciently  versed 
in  the  mode  of  proceeding,  he  makes  his  original  demand 
outrageously  exorbitant,  and  in  the  end  his  clients  are 
proportionate  gainers. 

This  unfortunate  mode  of  compromise  has  been 
found  so  convenient  for  arbitrators,  that  I,  who  about 
ten  years  ago  was  one  of  their  strenuous  supporters,  since 
this  system  has  come  into  almost  general  practice,  have 

Q  Q  2 


590  MARITIME    LEGISLATION. 

now,  in  tlie  interests  of  my  clients,  peremptofily  refused 
to  have  anything  whatever  to  do  with  any  kind  of  arbitra- 
tion. 

I  consider  that  I  am  the  more  justified  in  expressing 
my  candid  opinion  on  this  question  as  I  have,  through 
what  my  cUents  often  denominate  too  hberal  awards, 
settled  a  proportionately  large  number  of  salvage  cases 
out  of  court,  and  have  usually  succeeded  in  convincing 
those  claimants  v>'ho  were  not  satisfied  and  preferred 
the  decision  of  the  London  or  Dublin  Admiralty  Judges, 
that  only  in  very  rare  cases  they  obtained  a  larger  salvage 
than  I  had  offered. 

462.  There  shall  be  paid  to  every  assessor  andumpire  who  may 
be  so  appointed  as  aforesaid  in  respect  of  his  services,  such  sum 
not  exceeding  five  pounds  as  the  Board  of  Trade  may  from  time  to 
time  direct  ;  and  all  the  costs  of  sucli  arbitration,  including  any 
such  payments  as  aforesaid,  shall  be  paid  by  the  parties  to  the 
dispute,  in  such  manner  and  in  such  shares  and  proportions  as  the 
said  justices  or  as  the  said  umpire  may  direct  by  their  or  his 
award. 

The  'I'riuity  Masters  could  not  be  expected  to  travel 
for  anytliiug  like  the  auiount  here  fixed  ;  and  really  no 
suitor  will  object  to  a  reasonable  charge  if  only  justice 
can  be  obtained. 

4GG.  Whenever  the  aggregate  amount  of  salvage  payable  in 
respect  of  salvage  services  rendered  in  the  United  Kingdom  has 
been  finally  ascertained  either  by  agreement  or  by  the  award  of 
such  justices  or  their  umpire,  but  a  dispute  arises  as  to  the  appor- 
tionment thereof  amongst  several  clainuints,  then,  if  the  amount 
does  not  exceed  two  hundred  pounds,  it  shall  be  lawful  for  the 
])arty  lialjle  to  ])ay  the  amount  so  due  to  apply  to  the  receiver  of 
Ihc.  district  f(jr  liberty  to  pay  the  amount  so  ascertained  to  hiiu  ; 
:iiid  ho  shall,  if  lii^  thinks  fit,  receive  the  same  accordingly,  and 
{/I  ant  II  c'crtificatc  under  liis  hand,  statin<^^  iho  fact  of  such  payment 


MERCHANT   SHIPPING   ACT,    1854  C97 

and  the  services  in  respect  of  wliich  it  is  made  ;  and  such  certi- 
ficate sliall  1)6  a  full  discharge  and  indemnit}^  to  the  person  or 
persons  to  whom  it  is  given,  and  to  their  ship,  boats,  cargo,  ap- 
parel, and  effects,  against  the  claims  of  all  persons  whomsoever  in 
respect  of  the  services  therein  mentioned  ;  but  if  the  amount 
exceeds  two  hundri'd  pounds,  it  shall  bi'  apportioned  in  manner 
hereinafter  mentioned. 

I  woiihl  suLTLiX'st  to  omit  the  wovda  *•  if  he  t' rinks  fit' 
in  the  ninth  line  of  the  clanse.  I  cannot  see  any  reason 
why  snch  a  matter  should  be  left  to  the  lieccnver's  dis- 
cretion. 

468,  Whenever  an}^  salvage  is  due  to  any  person  under  this 
Act,  the  receiver  shall  act  as  follows ;  (that  is  to  say), 

(1)  If  the  same  is  due  in  respect  of  services  rendered  in  assist- 

ing any  ship  or  boat,  or  in  saving  the  lives  of  persons 
belonging  to  the  same,  or  the  cargo  or  apparel  thereof, 
He  shall  detain  such  ship  or  boat  and  the  cargo  and  apparel  be- 
longing thereto  until  payment  is  made,  or  process  has  been  issued 
by  some  competent  court  for  the  detention  of  such  ship,  boat,  cargo, 
or  apparel. 

(2)  If  the  same  is  due  in  respect  of  the  saving  of  any  wreck, 

and  such  wreck  is  not  sold  as  unclaimed  in  pursuance 
of  the  provisions  hereinafter  contained. 

He  shall  detain  such  wreck  until  payment  is  made,  or  process 
has  been  issued  in  manner  aforesaid ; 

But  it  shall  be  lawful  for  the  receiver,  if  at  any  time  previously 
to  the  issue  of  such  process  security  is  given  to  his  satisfaction  for 
the  amount  of  salvage  due,  to  release  from  his  custody  any  ship, 
boat,  cargo,  apparel,  or  wreck  so  detained  by  him  as  aforesaid  ;  and 
in  cases  where  the  claim  for  salvage  exceeds  two  hundred  pounds 
it  shall  be  lawful  in  England  for  the  High  Court  of  Admiralty  of 
England,  in  Ireland  for  the  High  Court  of  Admiralty  in  Ireland, 
and  in  Scotland  for  the  Court  of  Session,  to  determine  any  question 
that  may  arise  concerning  the  amount  of  the  security  to  be  given 
or  the  sufficiency  of  the  sureties  ;  and  in  all  cases  where  bond  or 


59d  MAiail.ME    LEGISLATION. 

other  security  is  given  to  the  receiver  for  an  amount  exceeding  two 
hundred  pounds,  it  shall  be  lawful  for  the  salvor  or  the  Owner  of 
the  property  salved,  or  their  respective  agents,  to  institute  pro- 
ceedings in  such  last-mentioned  courts  for  the  purpose  of  having 
the  questions  arising  between  them  adjudicated  upon,  and  the 
said  courts  may  enforce  payment  of  the  said  bond  or  other  security 
in  the  same  manner  as  if  bail  had  been  given  in  the  said  courts. 

In  some  of  tlie  outports  it  lias  been  made  a  frequent 
practice  immediately  after  am^  property  brought  in  liable 
to  salvage  has  been  placed  in  charge  of  the  Eeceiver,  and 
without  any  further  inquiry  whether  the  parties  to  whom 
such  property  belongs  are  willing  or  able  to  give  sufficient 
bail  for  any  claim  upon  them,  to  telegraph  at  once  to 
London  for  an  Admiralty  Warrant,  so  as  to  bring  the 
matter  within  the  jurisdiction  of  the  Court.  I  think  this 
is  a  needless  expense,  which  easily  might  be  saved,  as  it 
really  cannot  be  pleaded  that  such  a  course  is  adopted  for 
better  security,  more  particularly  when,  as  in  the  majority 
of  cases,  the  property  is  in  such  a  state  that,  whether 
arrested  or  not,  it  is  unable  to  leave  the  port. 

It  would  be  very  easy  to  improve  the  Receiver's 
machinery  in  order  to  avoid  the  taking  out  of  a  warrant, 
as  in  almost  all  cases  the  Eeceiver  actually  comes  forward 
as  the  Agent  of  the  Marshal  of  the  Admiralty  Court,  and 
as  such  takes  charge  of  the  property ;  the  result  is  that 
a  large  sum  is  unnecessarily  charged  as  possession  fee,  &c., 
whereas  all  tliat  claimants  have  a  rio-ht  to  demand  is 
security  for  salvage,  which,  of  course,  ought  never  to  be 
denied. 

400.  Whenever  any  ship,  boat,  cargo,  apparel,  or  wreck  is 
detained  by  any  receiver  for  non-payment  of  any  sums  so  due  as 
aforesaid,  and  the  parties  liable  to  pay  the  same  are  aware  of  such 
dctciilioii.  Ilidi.  ill  llic  f'nllowiiig  cases;   (that  is  to  say), 

(1)    111   cases   where   llic   atiiouut  is  not  dis[)utt'd,  and   payment 


MERCHANT   SIIIPPIXG    ACT,    1854.  599 

thereof  is  not  made  within  twenty  days  after  the  same 
has  become  due ; 
(2)  In  cases  where  the  amount  is  disputed,  but  no  appeal  lies 
from  the  first  tribunal  to  which  the  dispute  is  referred, 
and  payment  thereof  is  not  made  within  twenty  days 
after  the  decision  of  such  first  tribunal  ; 
('■))  In  cases  where  the  amount  is  disputed,  and  an  appeal  lies 
from   the  decision  of  the  first  tribunal  to  some  other 
tribunal,  and  payment  thereof  is  not  made  within  such 
twenty  days  as  last  aforesaid,  or  such  monition  as  herein- 
before mentioned  is  not  taken  out  witliin  such  twenty 
days,  or  such  other  proceedings  as  are  according  to  tho 
practice  of  such  other  tribunal  necessary  for  tho  pro- 
secution of  an  appeal  are  not  instituted  within    such 
twenty  days ; 
The  receiver  may  forthwith  sell  such  ship,  boat,  cargo,  apparel,  or 
wreck,  or  a  sufficient  part  thereof,  and  out  of  the  proceeds  of  the 
sale,  after  payment  of  all  expenses  thereof,  defray  all  sums  of  money 
due  in  respect  of  expenses,  fees,  and  salvage,  paying  the  surplus, 
if  any,  to  the  Owners  of  the  property  sold,  or  other  the  parties 
entitled  to  receive  the  same. 

Here  I  would  suggest  to  make  it  obligatory  upon  such 
Eeceiver  to  issue  public  notice  in  the  local  and  a  central 
paper  of  the  date  of  sale. 

472.  If  any  dispute  arises  between  the  receiver  and  any  such 
admiral,  vice-admiral,  lord  of  any  manor,  or  otlier  person  as  afore- 
said as  to  the  validity  of  his  title  to  wreck,  or  if  divers  persons 
claim  to  be  entitled  to  wreck  found  at  the  same  place,  the  matter 
in  dispute  may  be  decided  by  two  justices  in  the  same  manner  in 
which  disputes  as  to  salvage  coming  within  the  jurisdiction  of 
justices  are  hereinbefore  directed  to  be  determined. 

I  imagine  that  no  objection  could  be  made  to  see  the 
authority  of  two  Justices  of  the  Peace  superseded  by  that 
of  a  Stipendiary  Magistrate  or  a  County  Court  Judge. 


GOO  MARITIME   LEGISLATION. 

475.  If  no  Owner  establishes  his  claim  to  wreck  found  at  any 
place  before  the  expiration  of  such  period  of  a  year  as  aforesaid, 
and  if  no  admiral,  vice-admiral,  lord  of  any  manor,  or  person  other 
than  Her  Majesty,  her  heirs  or  successors,  is  proved  to  be  entitled 
to  such  ^vreck,  the  receiver  shall  forthwith  sell  the  same,  and  after 
payment  of  all  expenses  attending  such  sale,  and  deducting  there- 
from his  fees,  and  all  expenses  (if  any)  incurred  by  him,  and 
paying  to  the  salvors  such  amount  of  salvage  as  the  Board  of 
Trade  may  in  each  case,  or  by  any  general  rule,  determine,  pay 
the  same  into  the  receipt  of  Her  Majesty's  Exchequer  in  such 
manner  as  the  Treasury  may  direct,  and  the  same  shall  be  carried 
to  and  form  part  of  the  Consolidated  Fund  of  the  United  Kingdom. 

Public  notice  of  intended  sale  ought  to  be  required. 

478.  Every  person  who  does  any  of  the  following  acts ;  (that 
is  to  say), 

(1)  Wrongfully  carries  away  or  removes  any  part  of  any  ship 

or  boat  stranded,  or  in  danger  of  being  stranded,  or 
otherwise  in  distress  on  or  near  the  shore  of  any  sea  or 
tidal  water,  or  any  part  of  the  cargo  or  apparel  thereof, 
or  any  wreck  ;  or, 

(2)  Endeavours  in  any  way  to  impede  or  hinder  the  saving  of 

such  ship,  boat,  cargo,  apparel,  or  wreck ;  or 
(o)  Secretes  any  wreck,  or  obliterates  or  defaces  any  marks 
thereon ; 
Shall,  in  addition  to  anj-  other  penalty  or  punishment  he  may  be 
subject  to  under  this  or  any  other  Act  or  law,  for  each  such 
offence  incur  a  penalty  not  exceeding  fifty  pounds  ;  and  every 
person,  not  being  a  receiver  or  a  person  hereinbefore  authorised  to 
take  the  comiiuiiid  in  cases  of  ships  being  stranded  or  in  distress, 
or  not  acting  under  the  orders  of  such  receiver  or  person,  who, 
without  the  leave  of  the  Master,  endeavours  to  board  any  such 
ship  or  boat  as  aforesaid,  shall  for  each  offence  incur  a  penalty  not 
exceeding  fifty  pounds ;  and  it  shall  be  lawful  for  the  Master  of 
such  ship  or  boat  to  repel  by  force  any  such  person  so  attempting 
to  bo;ird  the  s;mie. 

I    lliiiik    llic  od'ciiccs    licrciii    dcscfilx'd    oul'IiI    to    be 


ME^vCIIA^'T   SIIIPriNG   act,   1854.  GOl 

punished  more  severely  tlian  is  here  eiiacled  ;  tlie  dilliculty 
t)f  })i-()viiio-  them  is  so  great,  and  the  inclinalion  to  sliclt^'r 
offenders  ^vlio  Iwive,  according  to  the  genei-al  and  cus- 
tomary views  among  the  iiihal)ilants  of  tlie  coast,  only 
taken  wliat  if  the  wind  had  ])l()\vn  in  a  dillerent  direction 
would  have  been  irrecoverably  lost,  is  so  universal,  that  all 
such  offences  must  be  punished  with  exemplary  severity, 
in  order  to  bring  the  public  mind  in  those  localities  to 
comprehend  the  wrong  Avhich  is  thercl)y  connnitted. 

Under  this  part  of  tlie  Act  the  suggestion  ought  to  be 
made  that  it  would  be  in  the  interest  of  public  justice  to 
alter  the  present  system  of  surveying  damages  to  ships. 
In  Continental  ports  no  master  of  a  vessel  can  obtain  a 
certificate  of  survey  which  is  of  any  legal  use  to  him  from 
any  other  than  a  surveyor  appointed  by  public  authority, 
sometimes  judicial,  sometimes  mercantile,  but  always  duly 
sworn  to  act  impartially  to  the  best  of  his  knowledge  and 
behef ;  we,  on  the  contrary,  have  fallen  into  so  loose  a 
manner  of  transacting  this  sort  of  business  that  the  most 
serious  irregularities  have  been  the  natural  result. 

According  to  what  is  called  general  custom,  any 
master  of  a  ship,  whether  British  or  foreign  (in  case  the 
law  of  his  country  does  not  force  the  latter  to  apply  to 
his  consular  officer),  is  at  liberty  to  appoint  one  or  two 
parties  as  surveyors,  of  whom  he  personally  very  rarely 
knows  anything,  but  who  are  reconnnended  to  him  l)y  his 
agent  or  correspondent  as  suitable  persons  for  the  })urpose, 
who  too  often  do  not  consider  themselves  obliged  to  act 
in  the  capacity  of  impartial  surveyors  but  assume  at  once 
the  post  of  partisans,  that  is  to  say,  they  certify  to  the 
correctness  of  anythin<^  that  is  desired,  (piite  inunatei-ial 
whether  truthful  or  not,  if  only  a  colour  for  their  asser- 
tion  can  be  found.     In  fact,  in  some  of   our    most  fre- 


602  MARITIME   LKGISLATION. 

quented  outports  it  is  publicly  asserted  that  tlie  order  to 
survey  a  damaged  vessel  is  looked  upon  in  the  same  light 
as  the  retaining  fee  of  a  barrister,  and  is  considered  to 
oblige  the  surveyor  to  use  his  official  position  for  the  pro- 
tection of  the  master  of  such  vessel,  without  any  due 
consideration  for  the  other  interests  at  stake.  How  frauds 
of  all  descriptions  can,  with  impunity,  be  practised  uj^on 
shipowners  and  their  underwriters,  when  an  unprincipled 
master  of  a  ship  combines  to  that  effect  with  his  agent, 
or  the  clerks  he  employs,  and  finds  no  effectual  resistance 
on  the  part  of  the  surveyors,  may  be  readily  conceived  ; 
and  this  state  of  things  is  the  more  dangerous  as  only  in 
very  rare  instances  the  underwriters  are  so  efficiently  and 
promptly  represented  as  to  prevent  by  the  means  which 
the  law  affords  the  serious  consequences  above  described. 

One  of  the  methods  sometimes  available  is  the  appoint- 
ment of  another  set  of  surveyors  to  prove  by  a  second 
survey  the  irregularities  in  the  first ;  but  it  is  not  easy  to 
find  in  an}'  place  men  independent  enough  to  go  directly 
against  the  signed,  sealed,  and  delivered  opinions  of  their 
townsmen,  and  if  they  were  to  be  found  much  time  Avould 
be  wasted  and  much  useless  expense  incurred  in  order  to 
prove  the  fallacy  of  the  first  and  the  correctness  of  the 
second  survey.  But  what  can  be  done  when  on  the  faith 
of  an  erroneous,  or  even  fraudulent  survey,  a  vessel  has 
been  sold  and  claims  made  which  cannot,  under  the 
circumstances  stated,  be  disputed  ? — a  case  which  has  not 
unfrequently  occurred. 

It  a^ipears  to  me  that  the  only  means  of  obviating  all 
these  serious  consequences  is  to  declare  that  for  the  in- 
terest of  all  concerned  in  the  case  of  any  damaged  ship, 
or  cargo,  no  survey,  valuation,  or  appraisement  shall  be 
good  ill  law  ore(|uity,  for  any  jDurpose  whatsoever,  unless 
made  by  one  or  two  (as    the  case    may   be)    competent 


MERCHANT  SHIPPING   ACT,  185 J.  003 

surveyors  appointed  by  the  Eeceiver,  and  sworn  by  him  in 
the  same  way  as  appraisers  are  at  present  under  the  50th 
section  of  the  Merchant  Shipping  Act  Amendment  Act, 
1862  ;  tliis  woidd  be  ahogether  in  accordance  with  Con- 
tinental custom,  and  woukl  conduce  to  restore  the  general 
confidence  which  recent  transactions  in  our  outports  have 
so  greatly  shaken. 

The  Eeceiver  will  take  care  that  the  surveyors  he 
appoints  perform  their  duty  efficientl}',  and  as  public 
officials  it  is  to  be  hoped  that  their  being  bribed  or  tam- 
pered with  will  be  altogether  out  of  the  question.^ 

Part  IX. — LiahiUttj  of  Shipovners. 

502.  The  Ninth  Part  of  this  Act  shall  apply  to  the  whole  of 
Her  Majesty's  dominions. 

This  part  of  the  Act,  although  distinctly  stated  to 
apply  '  to  the  whole  of  Her  Majesty's  dominions,'  has  been 
unexpectedly  extended  in  some  cases  to  acts  taking  place 
on  the  high  seas,  without  the  jurisdiction  of  this  country 
or  any  of  her  colonies,  in  which  foreign  ships  have  been 
concerned.  The  extension  gave  rise,  in  the  case  of  the 
Belgian  steamer  '  Marie  de  Brabant,'  to  a  very  serious  loss 
to  a  large  numbers  of  foreigners,  as  a  perusal  of  the  judg- 
ments of  the  Admiralty  Court  and  of  the  Judicial  Committee 
of  the  Privy  Council  will  sliow.^ 

The  non-compliance  with  the  fundamental  rules  of 
acknowledged  principles  of  international  law  is  so  sur- 

'  It  may  be  well  to  state  here,  that  since  the  forcj^oing  was  An-itten,  I 
have — in  the  mterest  of  mj'  clients — in  all  cases  passing  through  nij-  hands, 
and  before  snrvej-s  were  held,  caused  a  document  to  be  executed,  by  which 
the  representatives  of  the  assured  and  their  underwriters  respectively  ap- 
point each  a  surveyor,  and  these  two  surveyors  nominate  an  umpire,  by 
whose  final  decision  any  differences  between  the  two  survejors  are  finally 
settled. 

-  For  correspondence  on  this  matter,  vide  p.  513. 


604  MARITIME   LEGISLATION. 

prising  that  nothing  short  of  a  positive  enactment  tliat 
this  part  of  the  Act  was  intended  to  be  applied  only  to 
British  ships  wherever  they  meet  (of  course  their  laws 
always  travel  with  them)  or  to  foreign  ships  when  within 
the  Ihnits  of  British  jurisdiction  (within  three  miles  from 
shore),  can  be  ex23ected  to  alter  this  highly  unsatisfactory 
state  of  affairs. 

Having  submitted  to  the  President  of  the  Board  of 
Trade  a  memorial  especially  prepared  for  the  purpose  of 
setting  forth  the  grievances  in  this  case,  I  may  here  refrain 
from  entering  more  minutely  upon  the  subject. 

507.  AVbenever  any  such  liability  as  aforesaid  has  been  or  is 
alleged  to  have  been  incurred  in  respect  of  loss  of  Hfe  or  personal 
injury,  tlie  Board  of  Trade  may,  in  its  discretion,  after  giving  not 
less  than  three  days'  notice  by  post  or  otherwise  to  the  party  to  be 
made  defendant  or  defender,  by  warrant  sealed  with  the  seal  of 
such  Board,  or  signed  by  one  of  its  secretaries  or  assistant  secre- 
taries, require  the  sheriff  having  jurisdiction  over  any  place  in  the 
United  Kingdom  to  summon  a  jury  at  a  time  and  place  to  be 
specified  in  such  warrant  for  the  purpose  of  determining  the 
following  question  ;  (that  is  to  say). 

The  number,  names,  and  descriptions  of  all  persons  killed  or 
injured  by  reason  of  any  wrongful  act,  neglect,  or  dc-fault  ; 
And  upon  the  receipt  of  such  warrant  the  sheriff  shall  summon  a 
jury  of  twenty-four  indifferent  persons,  duly  qualified  to  act  as 
common  jurymen  in  the  superior  coui-ts,  to  meet  at  such  time  and 
place  as  aforesaid. 

Tti  ihf*  case  above  referred  to  of  the  '  Marie  de  Brabant,' 
several  lives  were  lost  in  consequence  of  the  neglect  of 
the  officer  in  diai-ge  of  the  Liverjjool  steamer  '  Amalia,' 
and  coiiiix-iisatioii  was  in  due  course  obtained  ;  but  1  have 
jic\cf  licai'd  lliat  ])rocc('diiigs  wci'c  taken  in  oi'der  to  sus- 
iK-nd  ()!•  cancel  the  cerlilicale  of  such  ollicer  ;   ought  it  not 


MERCHANT  STIirriNG   ACT,   1854.  G05 

to  be  the  duty  of  the  Judge  of  tlie  Admh-alty  Court  to  in- 
form the  Board  of  Trade  of  such  cases  ? 

Part  X. — Lcrinl  Vrocedure. 

51 9.  Any  stipendiary  magistrate  shall  liave  full  power  to  do 
alone  whatever  two  justices  of  the  peace  are  by  this  Act  authorised 
to  do. 

Here  the  authorisation  of  the  County  Court  Judges  or 
Sheriffs,  in  heu  of  the  two  Justices  of  the  Peace,  would 
have  to  l)e  recapitulated. 

527.  Whenever  any  injury  has,  in  any  part  of  the  world,  been 
caused  to  any  property  belonging  to  Her  Majesty,  or  to  any  of  Her 
^Majesty's  subjects  by  any  foreign  shiji,  if  any  time  thereafter  such 
ship  is  found  in  any  port  or  river  of  the  United  Kingdom,  or  within 
three  miles  of  the  coast  thereof,  it  shall  be  lawful  for  the  Judge  of 
any  Court  of  Record  in  the  United  Kingdom,  or  for  the  Judge  of 
the  High  Court  of  Admiralty,  or  in  Scotland  the  Court  of  Session, 
or  the  sheriff  of  the  county  within  whose  jurisdiction  such  ship  may 
be,  upon  its  being  shown  to  him  by  any  person  applying  summarily 
that  such  injury  was  probably  caused  by  the  misconduct  or  want 
of  skill  of  the  Master  or  mariners  of  such  ship,  to  issue  an  order 
directed  to  any  officer  of  Customs  or  other  officer  named  by  such 
Judge,  requiring  him  to  detain  such  ship  until  such  time  as  the 
Owner,  Master,  or  Consignee  thereof  has  made  satisfaction  in  respect 
of  such  injury,  or  has  given  security,  to  be  approved  by  the  Judge 
to  abide  the  event  of  any  action,  suit,  or  other  legal  proceeding  that 
may  be  institi^ted  in  respect  of  such  injury,  and  to  pay  all  costs  and 
damages  that  may  be  awarded  thereon ;  and  any  officer  of  Customs 
or  other  officer  to  whom  such  order  is  directed,  shall  detain  such 
ship  accordingly. 

My  observations  upon  clause  4GS  will  apply  equally 
to  this  clause. 

529.  In  any  action,  suit,  or  other  proceeding  in  relation  to  such 
injury,  the  person  so  giving  security  as  aforesaid  shall  be  made  de- 


606  MARITIME   LEGISLATION. 

fend.-nt  or  defender,  and  shall  be  stated  to  be  the  Owner  of  the  ship 
that  has  occasioned  such  damage ;  and  the  production  of  the  order 
of  the  Judge  made  in  relation  to  such  security  shall  be  conclusive 
evidence  of  the  liability  of  such  defendant  or  defender  to  such  action, 
suit,  or  other  proceeding. 

In  spite  of  the  clear  directions  contained  in  this  clause, 
the  Judge  of  the  Admiralty  Court  has  persistently  refused 
to  recognise  underwriters  either  as  plaintiffs  or  defendants, 
although  they  are  frequentty  the  only  parties  who  have 
ultimately  anything  to  gain  or  lose  by  the  proceedings  ; 
this  must  naturally  give  rise  to  very  awkward  complica- 
tions. 

Apparently  unimportant  matters  of  this  description 
have  often  given  rise  to  irregularities  which  could  not 
easily  be  surmounted  ;  let  everybody  who  has  an  interest 
in  a  case  have  a  locus  standi,  and  not  be  obliged  to  assume 
another  person's  capacity  and  sail  under  false  colours. 

Part  XI. — Miscellaneous. 

547.  The  Legislative  authority  of  any  British  Possession  shall 
have  power,  by  any  Act  or  Ordinance,  confirmed  by  Her  Majesty  in 
Council,  to  repeal,  wholly  or  in  part,  any  provisions  of  this  Act  re- 
lating to  ships  registered  in  such  Possession ;  but  no  such  Act  or 
Ordinance  shall  take  effect  until  such  approval  has  been  proclaimed 
in  such  Possession,  or  until  such  time  thereafter  as  may  be  fixed  by 
such  Act  or  Ordinance  for  the  purpose. 

If  one  part  of  the  Act  has  been  made  law  to  the 
colonies,  why  not  the  whole  ? 

Schedule  Form  B  (see  Section  38).  After  perusal  of 
the  declaration  of  ownership  I  am  astonished  that  the 
case  related  by  me  above  ^  could  have  occurred,  but  so 
it  is. 

'   ^'illo  ante,  p.  00.'3. 


AMENDMENT  ACTS,   1855,  18G2.  607 

18  &  19  Vict.  cap.  91. 
The  Merchant  ShqiiniKj  Ad  Amendment  Ad,  1855. 

19.  Whenever  any  articles  belonging  to  or  forming  part  of  any 
Foreign  Ship  which  has  been  wrecked  on  or  near  the  coasts  of  the 
United  Kingdom,  or  belonging  to  or  forming  part  of  the  cargo 
thereof,  are  found  on  or  near  such  coasts,  or  are  brought  into  any 
port  in  the  United  Kingdom,  the  Consul-General  of  the  country  to 
which  such  ship,  or,  in  the  case  of  cargo,  to  which  the  Owners  of 
such  cargo,  may  have  belonged,  or  any  Consular  Officer  of  such 
country  authorised  in  that  behalf  by  any  treaty  or  agreement  with 
such  country,  shall,  in  tlie  absence  of  the  Owner  of  such  ship  or 
articles,  and  of  the  Master  or  other  Agent  of  the  Owner,  be  deemed 
to  be  the  Agent  of  the  Owner,  so  far  as  relates  to  the  custody  and 
disposal  of  such  articles. 

I  would  suggest  adding  to  this  section  a  stipulation, 
that  whenever  the  representative  of  any  underwriter 
shall  be  able,  to  the  satisfaction  of  the  Board  of  Trade  or 
the  Eeceiver,  as  the  case  may  be,  to  prove  an  interest  to 
the  wrecked  property,  such  underwriter's  representative 
shall  be  entitled  to  the  custody  and  disposal  of  such 
articles. 

The  present  mode  of  effecting  insurances,  not  as  for- 
merly at  the  place  where  the  respective  owners  of  ship  or 
cargo  reside,  but  frequently  at  very  different  places,  would 
cause  considerable  annoj^ances,  delays,  and  unnecessary 
expense,  if  this  section  remained  without  the  proposed 
addition. 


25  &  26  Vict.  cap.  63. 
The  Merchant  Shij^ping  Act  Amendment  Act,  1862. 

49.  The  provisions  contained  in  the  Eighth  Part  of  the  Prin- 
cipal Act  for  giving  summary  jurisdiction  to  two  Justices  in  Salvage 


608  MARITIME    LEGISLATION. 

cases,  and  for  presenting  unnecessary  Appeals  and  Litigation  m 
such  cases,  shall  be  amended  as  follows ;  (that  is  to  say), 

(1)  Such  provision  shall  extend  to  all  cases  in  which  the  value  of 

the  property  saved  does  not  exceed  one  thousand  pounds, 
as  well  as  to  the  cases  provided  for  by  th  rincipal 
Act: 

(2)  Such  provisions  shall  be  held  to  apply  whether  the  Salvage 

Service  has  been*  rendered  within  the  limits  of  the 
United  Kingdom  or  not : 

(3)  It  shall  be  lawful  for  one  of  Her  Majesty's  Principal  Secre- 

taries of  State,  or  in  Ireland  for  the  Lord  Lieutenant 
or  other  Chief  Governor  or  Governors,  to  appoint  out 
of  the  Justices  for  any  borough  or  county  a  rota  of 
Justices  by  whom  jurisdiction  in  salvage  cases  shall  be 
exercised  : 

(4)  When  no  such  rota  is  appointed,  it  shall  be  lawful  for  the 

salvors,  by  writing  addressed  to  the  Justice's  Clerk,  to 
name  one  Justice,  and  for  the  Owner  of  the  property 
saved  in  like  manner  to  name  the  other  : 

(5)  If  either  party  fails  to  name  a  Justice  within  a  reasonable 

time,  the  case  may  be  tried  by  two  or  more  Justices  at 
Petty  Sessions  : 
(G)  It  shall  be  competent  for  any  Stipendiary  Magistrate,  and 
also  in  EiKjhvud  for  any  County  Court  Judge,  in  Scotland 
for  the  Sheriff  or  Sheriff  substitute  of  any  county,  and  in 
Ireland  for  the  Recorder  of  any  borough  in  which  there 
is  a  Recorder,  or  for  the  Chairman  of  Quarter  Sessions 
in  any  county,  to  exercise  the  same  jurisdiction  in  Sal- 
vaofe  cases  as  is  ofiven    to  two  Justices  ; 

(7)  It  shall  be  lawful  for  one  of  Her  Majesty's  Principal  Secre- 

taries of  State  to  determine  a  scale  of  costs  to  be 
awarded  in  Salvage  cases  by  any  such  Justices  or  Court 
as  aforesaid  : 

(8)  All  the  provisions  of  the  I'rincipal  Act  relating  to  summary 

])rocecdings  in  Salvage  cases,  and  to  the  prevention  of 
unnecessary  appeals  in  sucli  cases,  shall,  except  so  far 
as  the  same  are  altei-ed  by  tliis  Act,  extend  and  apply 


AMENDMENT   ACT,   1802.  COO 

to  all  such  proceedings,  whether  under  the  Principal 
Act  or  this  Act,  or  both  of  such  Acts. 

I  have  in  my  remarks  on  the  Principal  Act  entered  fully 
into  the  necessity  of  substituting  the  County  Court  Judges 
for  the  two  Justices  of  the  Peace,  with  respect  to  the  ad- 
judication of  salvage  cases,  and  here  refer  to  the  arguments 
there  used. 

suh.  4.  This  clause  perpetuates  the  arbitration  system 
which  has  proved  so  fallacious,  and  the  consequences  of 
which  I  have  above  so  fully  described. 

sub.  6.  My  suggestions  respecting  the  County  Court 
Judges  being  here  adopted,  I  see  no  reason  to  doubt  that 
the  plan,  as  a  whole,  will  be  carried  out  without  very 
serious  opposition. 

50.  Whenever  any  Salvage  question  arises  the  Receiver  of 
Wreck  for  the  district  may,  upon  application  from  either  of  the 
parties,  appoint  a  Valuer  to  value  the  property  in  respect  of  which 
the  Salvage  claim  is  made,  and  shall,  when  the  valuation  has  been 
returned  to  him,  give  a  copy  of  the  valuation  to  both  parties ;  and 
any  copy  of  such  valuation,  purporting  to  be  signed  by  the  Valuer, 
and  to  be  attested  by  the  receiver,  shall  be  received  in  evidence  in 
any  subsequent  proceeding ;  and  there  shall  be  paid  in  respect  of 
such  valuation,  by  the  party  applying  for  the  same,  such  fee  as 
the  Board  of  Trade  may  direct. 

I  have  myself  tried  the  working  of  this  clause,  and  its 
efficiency  has  principally  induced  me  to  propose  to  trive 
to  the  Eeceiver  a  more  extended  authority  in  all  matters 
of  average. 

54.  The  Owners  of  any  ship,  whether  British  or  Foreign,  shall 
not,  in  cases  where  all  or  any  of  the  following  events  occur  without 
their  actual  fault  or  privity  ;  (that  is  to  say), 

(1)  Where  any  loss  of  life  or  personal  injury  is  caused  to  any 
person  being  carried  in  such  ship  ; 

R  R 


610  MARITIME   LEGISLATION. 

(2)  Where  any  damage  or  loss  is  caused  to  any  goods,  mer- 

etandise,  or  otlier  things  whatsoever  on  hoard  any  such 

sliip ; 

(o)  Where  any  loss  of  life  or  personal  injury   is  by  reason  of 

the  improper  navigation  of  such  ship  as  aforesaid  caused 

to  any  person  carried  in  any  other  ship  or  boat ; 

(4)  Where  any  loss  or  damage  is   by  reason  of  the  improper 

navigation  of  such  ship  as  aforesaid  caused  to  any  other 

ship  or  boat,  or   to  any  goods,  merchandise,  or  other 

things  whatsoever  on  board  any  other  ship  or  boat ; 

be  answerable  in  damag-es  in   respect  of  loss  of  life  or   personal 

injury,  either  alone  or  together  with  loss  or  damage  to  ships,  boats, 

goods,    merchandise,    or    other  thing's,   to  an    aggregate   amount 

exceeding  fifteen  pounds  for  each  ton  of  their  ship's  tonnage  ;  nor 

in  respect  of  loss  or  damage  to  ships,  goods,  merchandise,  or.  other 

things,  whether  there  be  in  addition  loss  of  life  or  personal  injury 

or  not,  to  an  aggregate  amount  exceeding  eight  pounds  for  each 

ton  of  the    ship's    tonnage ;    such  tonnage  to    be  the    registered 

tonnage  in  the  case  of  sailing  ships,  and  in  the  case  of  steam  ships 

the  gross  tonnage  without  deduction  on  account  of  engine-room  : 

In  the  case  of  any  foreign  ship  which  has  been  or  can  be 
measured  according  to  Britislt  law,  the  tonnage  as  ascertained  by 
such  measurement  shall,  for  the  purposes  of  this  section,  be  deemed 
to  be  the  tonnage  of  such  ship  : 

In  the  case  of  any  foreign  ship  which  has  not  been  and  cannot 
Be  measured  under  Britislt  law,  the  Surveyor-General  of  tonnage 
in  the  United  Kingdom,  and  the  Chief  Measuring  Officer  in  any 
British  possession  abroad,  shall,  on  receiving  from  or  by  direction 
of  the  Court  hearing  the  case  such  evidence  concerning  the 
dimensions  of  the  ship  as  it  may  be  found  practicable  to  furnish, 
give  a  certificate  under  his  hand,  stating  what  would  in  his  opinion 
liave  been  the  tonnage  of  such  ship  if  she  had  been  duly  measured 
according  to  Britixh  ];i\v,  and  the  tonnage  so  stated  in  such 
certificate  shall,  for  the  purposes  of  this  section,  be  deemed  to  be 
llic  lonuiigc  of  such  slii]). 

'i'his  clniisc  r<'])l;ircs   rlnnsc   5(14  of  llic  ri-iiicipal   Art, 


LIMITED   LIABILITY 


and  has  l)ceii  so  interpreted  ])y  our  Courts  as  to  give  rise 
to  tlie  most  unjust  and  unheard-of  results. 

In  the  hrst  phice,  it  does  not  deal  equal  justice  to  rich 
and  poor  ;  and  secondly,  it  li;is  introduced  into  this  country 
a  state  of  thinus  utterly  at  variance  with  sound  principles 
of  law. 

It  is  (|uite  clear  that,  when  tlie  ^lerchant  Shipping  Act 
of  1854  engaged  the  attention  of  the  Legislature,  the  ne- 
cessity of  abrogating  the  system  of  unlimited  liabiUty  was 
strongly  urged  upon  it.  By  that  system  the  whole  pro- 
perty of  a  shipowner,  whether  on  sea  or  land,  was  liable 
to  make  good  any  damage,  however  great,  which  might 
be  occasioned  by  any  vessel  belonging  to  him,  and  this, 
although  he  might  have  taken  every  precaution  which  the 
nature  of  the  case  would  possibly  permit. 

Such  a  state  of  things,  of  course,  deterred  responsible 
persons  from  investing  their  money  in  shipping  property, 
and,  by  throwing  the  carrying  trade  into  the  hands  of  a 
class  who  were  without  adequate  means,  gave  rise  to 
numerous  evils,  which  have  been  often  described  and  need 
not  be  here  repeated. 

The  propriety  of  admitting  the  principle  of  limited 
liability  into  maritime  matters  had  already  been  partly 
conceded  by  7  George  II.  cap.  15,  and  by  subsequent  Acts, 
and  the  system  now  obtained  its  natural  and  legitimate 
extension  in  the  50'ith  clause  of  the  Act  which  was 
the  result  of  mature  deliberation,  enactinf>-  that  no  owner 
should  be  answerable  for  losses  occasioned  without  his 
actual  fault  or  privity  beyond  the  value  of  his  ship  and 
the  current  freight.  This  new  system  was  qualified,  it 
must  be  admitted,  in  cases  where  liability  sliould  he 
incurred  with  respect  to  loss  of  life  or  personal  injur\-  to 
any  passenger,  by  the  stipulation  that  the  value  in  such 
cases  should  not  1)e  taken  to  be   less  than  15/.  pov  reo-ister 


It    H 


612  MARITIME   LEGISLATION. 

ton.  The  reason  for  tliis  qualification  is  not  apparent, 
unless  it  were  meant  to  discourage  the  taking  of  pas- 
sengers at  all  on  board  ships  of  inferior  value,  in  which 
case  it  ought  to  have  been  made  to  apply  only  to  liability 
incurred  by  the  ship  on  board  of  which  the  passengers  were. 
As  far  as  my  knowledge  goes,  however,  this  stipulation 
never  had  any  actual  influence  upon  the  decisions  of  our 
Courts. 

Such  being  the  law,  as  laid  down  by  Parliament  in 
1854,  it  soon  became  apparent  that  the  natural  increase 
in  the  mercantile  navies  of  the  world,  together  with  the 
general  introduction  of  steam  as  a  propelling  power, 
would  produce  a  great  increase  in  the  number  of  collision 
cases,  and  when  the  Board  of  Trade  had  become  aware 
of  some  defects  in  the  Merchant  Shipping  Act,  and  was 
known  to  be  contemplating  the  introduction  of  what 
afterwards  became  the  Amendment  Act  of  1862,  some  of 
the  owners  interested  in  the  large  steamers,  navigating 
the  most  frequented  parts  of  the  Atlantic,  and  conse- 
quently running  the  greatest  risk  cf  being  made  liable 
as  above  pointed  out,  really  succeeded  in  prevailing  upon 
the  late  Government  to  induce  the  Legislature  to  limit  the 
liability  of  shipowners  in  the  way  which  now  constitutes 
the  law  of  the  land. 

A  careful  perusal  of  '  Hansard '  will  show  the  wonder- 
ful arguuicntation  used  on  both  sides  of  the  House  when 
this  question  was  under  consideration,  and  that  on  May 
26,  1862,  the  then  First  Lord  of  the  Treasury  (Viscount 
Palmerstoii)  used  the  following  memorable  expressions, 
viz.  : — 

'He  could  not  understand  the  great  tenderness 
wliicli  hon.  geiilleiucn  seemed  to  feel  for  steamships 
causing  damage  lo  oilier  ships  Avhich  Iheymet.  Jf  he 
ircrr  not  (ifj]<'hilly  connected  irilh  hi.s  r/(////  lion,  friend  {{\\o. 


LIMU'ED   LIABILITY.  013 

President  of  tlie  Board  of  Trade),  but  were  exercising 
an  independent  judgment  on  his  proposal,  lie  should 
say,  that  that  proposal  failed  in  this,  that  the  true 
principle  which  ought  to  be  applied  to  damage  done 
by  steam  vessels  or  any  other  instrument  conducted 
by  man,  must  be  the  value  of  the  damage  done,  not 
the  quality  or  the  value  of  the  instrument  causing  it. 
If  there  was  any  fault  in  the  proposal  of  his  Eight 
hon.  friend  it  was  that  it  went  too  far  in  mitigation 
of  the  liability  of  steamships   for  damage,   and  he 
lioped  that  the  House  would   not   do    anything    so 
manifestly  unjust  as  still  further  to  limit  their  respon- 
sibility.' 
There  cannot  be  any  doubt  that  a  statesman  of  Lord 
Palmerston's   character   would   not    have    uttered    those 
words  of  complete  and  entire  disapprobation  of  a  measure 
introduced  and  strenuously  supported  in  the  House  by  one 
of  his  colleagues,  had  he  not  been  impressed  by  the  strong 
conviction  that  great  wrong  was  about  to  be  done,  and 
that  if,  for  j)arty  reasons,  he  were  obliged  to  acquiesce 
in  it,  he  would  at  least  relieve  his  conscience  by  a  public 
declaration,  that  nothing  but  his  official  connection  could 
have  induced  limi  to  do  so. 

The  Merchant  Shipping  Act  Amendment  Act  of  1862 
having  become  law,  we  must  now  refer  to  the  tenor  of 
subsequent  decisions,  to  see  the  influence  which  it  has 
exercised  upon  the  administration  of  justice  in  this 
country. 

In  the  first  place,  the  opening  words  of  the  Limited 
Liability  Clause  (Sect.  54,  '  the  owner  of  any  ship,  whether 
British  or  Foreign,  shall  not,'  &c.)  have  been  held  by  the 
Courts  to  apply  to  ships  of  all  nations,  in  all  places,  whether 
within  British  jurisdiction  or  without.  As  the  most  apt 
illustration  of  the  result  of  such  decisions,  I  would  refer 


014  .MARITIME    LEGISLATION. 

to  a  separate  memorial  wliich  I  have  laid  l)efore  the  Board 
of  Trade,^  on  the  subject  of  the  '  Marie  de  Brabant,'  a 
steamer  belonoing  to  Belgian  owners,  which  was  run  down 
and  sunk  by  the  British  steamer  '  Amalia,'  of  Liverj^ool. 
Tlie  Belgian  vessel  and  cargo  were  of  the  value  of  38,oT7Z. 
OS.  lOcI.,  and  this  amount  would  have  been  completely 
recovered  from  the  wrong-doing  'Amalia,'  the  value  of 
which  vessel  was  admitted  to  exceed  the  loss  she  had 
occasioned,  if  by  any  subsequent  accident  she  had  been 
obliged  to  enter  any  other  than  a  British  port,  but,  reach- 
ing Liverpool  instead,  the  parties  interested  in  the  '  Marie 
de  Brabant '  were  only  able  to  recover  14,600/.,  and  in  fact 
lost  23,777/.  05.  lOd.  bv  being^  oblisred  to  resort  to  our 
Courts  for  their  remedy. 

The  results  of  this  decision  must  not  be  lost  sight  of. 
The  principles  of  International  Law,  which  have  been 
adhered  to  in  the  most  sacred  manner  l)y  all  our  most 
eminent  Judges,  are  now  for  the  first  time  abandoned,  and 
in  their  stead  we  have  a  sort  of  lex  fori.,  or  an  assertion  by 
our  Courts  that  a  certain  fixed  measure  of  relief  is  all  that 
we  can  give,  and  that  Foreigners,  if  they  come  to  our 
(^ourts,  either  as  ])laintifrs  or  defendants,  must  be  satisfied 
witli  the  same  limited  lial)ility  tliat  would  be  held  to  apply 
ill  ihe  case  of  one  of  our  own  ships;  and  this  while  a 
I »iiiish  shipowner,  if  plainlill' in  the  foreign  court,  would 
obtain  full  and  complete  redress  !  And  there  may  result 
from  such  decisions  far  worse  confusion  than  has  been  at 
])resent  foreseen.  For.  supposing  that  a  Belgian  plaintiiT, 
wlio  ]i,i(l  been  d('pi-i\'('d  of  his  natui'al  international  rights 
by  tlie  decision  of  one  of  our  Courts,  in  accordance  with 
iliis  Ihitisli  mii!iici])al  legislation,  were  subsequently  to 
discover  tli(;  wrong-doing  ]h'itish  shi])  in  a  Px'lgiau  ])()rt; 
\vli;i1   should   ])i-(.'veii<    liim    IVoiii   (letainiiig  her   there,  and 


LIMITI'D    LIABILITY.  OIo 

ol)tainin<r  in  his  own  native  courts  such  further  redress  as 
he  had  failed  in  olitaining  liere  ?  If  such  a  course  is  once 
taken  in  a  foreign  country,  and  it  is  not  at  all  improbable 
that  it  may  be,  Ave  shall  have  some  of  our  ships  unable  to 
go  to  France,  some  to  ]3eliiium,  and  so  on ;  the  result 
being  endless  confusion  and  proportionate  injury  to  our 
trade. 

And  how  has  this  anomalous  and  unjustifiable  legisla- 
tion become  part  of  our  statute-book  ?  A  glance  at  the 
first  drafts  of  the  Amendment  Act,  as  laid  before  Parlia- 
ment for  discussion,  will  show  that  these  words,  '  whether 
British  or  Foreign,'  had  no  place  in  them ;  in  the  debates 
they  were  never  referred  to  ;  the  House  evidently  never  once 
remarked  that  four  words  had  subsequently  slipped  in  wliicli 
would  be  held  to  bind  our  Courts  to  disregard  the  most 
obvious  duties  of  international  comity,  or  surely  some 
expression  of  regret  would  have  been  called  forth  in  the 
House  l)y  our  departure  from  the  principles  which  have 
made  our  nation  famous  ;  on  the  contrary,  the  alteration 
made  without  any  authority  by  the  drawer  of  the  Bill, 
during  its  passage  through  the  House,  was  altogether 
overlooked,  and  I  will  do  no  more  than  give  the  words  of 
a  late  very  eminent  Judge,  the  Lord  Justice  Knight-Bruce, 
who  thus  expressed  himself  on  the  point  during  the 
hearing  of  the  '  Marie  de  Brabant '  appeal  above  referred 

to  :  — 

'  I  do  not  know  why  these  very  extensive  Acts  of 

Parliament  should  have  left  such  an  obvious  question 
open  to  argument.  I  cannot  quite  understand  it. 
The  questions  are  so  obvious,  you  know ;  and  a 
great  many  people  do  know  that  there  are  other 
people  in  the  world  who  have  ships  besides  ourselves.' 
In  the  second  place,  legislation,  in  the  direction  of 
limited  liability,  has  been  by  the  Amendment  Act  dis- 


016  ^JARITLME   LEGISLATION. 

tortecl  from  its  original  intention  and  converted  into  a 
powerful  engine  of  oppression  and  injustice.  There  can 
be  only  one  opinion  as  to  what  the  limitation  of  a  ship- 
owner's liabihty  was  originally  intended  to  imply,  viz.  : 
that  any  man  investing,  say,  100/.  in  the  purchase  of  a 
64th  share  of  a  ship,  should  have  the  certitude  that  he 
could  not  be  made  to  forfeit  his  share,  and  a  further 
amount  besides.  In  other  words,  the  owners  of  any  ship 
inflicting  damage  were  to  be  allowed  to  say,  '  There  is  our 
ship,  we  give  her  up  to  you,  and,  as  far  as  her  value 
goes,  you  may  pay  yourself  for  any  wrong  she  has  done.' 

This  is  the  common-sense  view  of  the  proposition,  and 
this  is  what  other  countries  have  always  acted  upon. 
Our  Courts,  however,  have  not  held  to  this  interpretation, 
but  have  actually  made  the  owners  of  a  ship,  which  has 
l)een  found  to  blame  for  a  collision,  liable  to  make  good 
8/.  per  ton  on  her  register,  when  their  vessel  itself  may 
have  been  rendered  almost  valueless  or  even  totally  de- 
stroyed by  the  same  casualty.  And  what  can  be  more 
monstrous  than  for  the  law  to  say  that  a  vessel  which  has 
originally  cost  her  owners  41.  per  ton  (and  at  this  rate 
very  excellent  vessels  may  now  be  bought  in  open  market) 
which  after  collision  with  another  vessel  may  reach  a 
liritisli  port  in  such  a  state  as  to  be  worth  only  11.  per 
ton,  sliall  nevertheless  be  held  liable  in  damages  to  the 
extent  of  8/.  per  ton  or  even  15/.,  in  case  of  loss  of  life, 
while  it  is  perfectly  clear  that,  if  the  vessel  is  a  foreigner, 
more  than  her  actual  market  value,  as  she  reaches  port, 
cannot  by  any  j^ossibility  be  got  out  of  her,  nor  ought  to 
be,  according  to  the  general  law  of  the  sea.^ 

In    fact,   the    creation    of   this    anomalous  legislation 

'  'i'lic  records  of  the  Registry  of  the  High  Court  of  Admiralty  will  show 
niiiuorouH  ciiKos  illuHtrativeof  the  above  remarks.  It  is  sulhcicnt  for  myjmr- 
poHC  to  mention  two,  viz.  tlie '  Earl  of  Leicester,'  whose  owners  paid  for  damages 


LIMITi:!)   LIAIULITY.  617 

virtually  establishes  a  monopoly  for  large  and  valuable 
ships  to  the  undue  prejudice  of  small  and  old  ones.  In 
the  same  debate,  to  which  I  have  already  referred,  the 
then  President  of  the  Board  of  Trade  is  reported  to  have 

said : — 

'  There  might,  indeed,  be  a  little  increase  of  lia- 
bility under  the  present  scheme,  as  far  as  the  owners 
of  worthless  ships  were  concerned,  but  that  was  quite 
right,  because  an  old  ship,  or  one  of  small  value, 
might  do  great  damage,  and  might  belong  to  a  wealthy 
owner  or  company  ; ' 

but  every  practical  man  would  have  told  the  right  hon. 
gentleman  that  there  are  many  steps  between  the  new  Al 
ship  and  that  worthless  craft  which  he  confesses  might 
probably  suffer  somewhat  under  the  effects  of  the  clauses 
supported  by  him.  And  I  am  at  a  loss  to  conceive  how 
it  can  be  thought  just  and  equitable  to  make  a  poor  man 
who  may  have  invested  all  his  savings  in  the  purchase  of 
a  ship,  worth  Al.  a  ton,  liable  to  a  loss  equal  to  double  the 
amount  of  his  investment,  while  you,  in  the  same  breath, 
exonerate  the  rich  owner  of  a  very  valuable  craft  from 
perhaps  three-fourths  of  the  amount  which,  under  the 
General  Maritime  Law,  he  might  be  made  liable  for,  al- 
though the  latter  really  could  afford  to  sacrifice  more  in 
pro2:)ortion  than  the  former ;  and  although  it  is  not  pre- 
tended that  the  liability  in  either  case  bears  any  proportion 
to  the  amount  of  injury  inflicted. 

Having  now,  as  I  hope,  said  enough  to  demonstrate 
clearly  the  injustice  which  is  occasioned  by  the  assump- 
tion of  a  fixed  arbitrary  value  for  property  which  is  sulj- 
ject  to  constant  fluctuation,  and  giving  it  strongly  as  my 

arising  out  of  a  collision  considerably  more  than  her  vahic  ;  the  '  Mindora,' 
whose  owners  paid  the  statutory  amount  of  8/.  per  tt)n,  although  the  vessel 
Jierself  was  at  the  bottom  of  the  sea. 


G18  MAIIITLME    LECUSLATION. 

opinion  that  the  late  Government,  unadvisedly  yielding  to 
the  influence  brought  to  bear  nj^on  it,  princijDally  by  the 
Liverpool  Chamber  of  Commerce,  gave  up,  in  the  504tli 
clause  of  the  Merchant  Shipping  Act,  a  principle  against 
which  no  reasonable  complaint  could  be  urged,  I  would 
in  conclusion  point  out  what  is  likely  to  he  the  result  of 
this  unfair  tenderness  for  large  valuable  steam-vessels. 

Every  one  must  have  observed  that  in  the  majority  of 
the  collision  cases  now  occurring  one  at  least  of  the  vessels 
is  a  steamer. 

It  will  also  not  be  denied  that  the  general  impression 
with  regard  to  collisions  is,  that  a  vessel  going  at  full  speed 
is  not  so  likely  to  receive  serious  damage  herself  as  she  is 
to  inflict  injury  upon  another. 

Xow,  bearing  this  in  mind,  and  remembering  that  the 
value  of  a  first-class  steamer  will  often  exceed  30^.  per 
ton,  what  would  be  the  position  of  the  master  of  such  a 
vessel  of,  say,  1,000  tons  register,  in  view  of  an  inevitable 
collision  ?  By  slackening  speed  he  might  receive  the  blow 
of  the  approaching  ship,  and  possibly  lose  his  o«ii,  or  in 
figures  30,000/. ;  if  he  increases  his  speed  he  will  probably 
save  his  own  ship  though  he  will  certainly  sink  the  other, 
and  if  he  does  his  owner's  loss  cannot  exceed  8,000/.' 
Surely  no  words  could  too  strongly  condemn  legislation 
which  could  produce  such  effects  as  are  here  only  hinted  at. 

Long  after  these  observations  -yvere  made,  and  only 
just  before  the  issue  of  this  third  edition,  another  proof 
lias  couie  to  my  knowledge  of  the  injustice  to  which  this 
legislation  leads. 

The  liritish  steamer  'Apollo,'  belonging  to  Messrs. 
Tlios.  Wilson,  Sons,  &  Co.  of  Hull,  came  into  collision  with 
and  was  sunk  by  the  French  vessel  '  Precurseur.'  The 
(nni-l  of  A])pcal  at  Kcinics  on  December  21,  1887,  held 
llu;  ()\\  iicis  of  the  '  Apollo  "  liable  for  the  damages  caused  to 


LIMITED    LIABILITY.  (ill) 

tlie  '  rivcurscur'  and  the  cargo  on  Ijoard  thereof,  to  the 
extent  of  8/.  per  register  ton.  Tliis  Court  of  Appeal,  in 
confirming  the  iudfnnent  of  the  Court  of  first  histance  at 
J3rest,  gave  its  reasons,  whicli  are  very  instructive.  They 
are  to  the  effect  that  no  foreigner  can  obtain  from  a  French 
tribunal  the  advantages  of  French  huv  (liere  tlie  freedom 
from  habihty  by  the  abandonment  of  the  vessel)  if  the 
tribunal  of  tlie  foreigner  does  not  grant  to  the  French 
subject  the  same  advantage,  or  real  reciprocity.  As  the 
French  subject  would  by  the  English  Courts  under  identical 
circumstances  be  held  liable  for  8/.  per  register  ton,  the 
Court  of  Appeal  at  Eennes  would  not  absolve  Messrs. 
Wilson  &  Co.  from  liability  on  any  other  tenns  than 
would  Ije  jrranted  by  the  En£flisli  Courts. 

French  jurisprudence  condemns,  therefore,  in  matters 
of  General  Maritime  Law,  the  lex  fori  in  similar  terms  to 
those  used  by  Lord  Stowell  and  many  of  our  most  celebrated 
and  enliditened  Judc^es  before  the  decision  in  the  case  of 
the  '  Marie  de  Brabant '  and  the  '  Amalia.' 

34  &  35  Vict.  cap.  110. 
The  Merchant  8hippinrj  Act,  1871. 

35  &  36  Vict.  cap.  73. 

Tlia  Merchant  Shij^^^ing  Act,  1872. 

36  &  37  Vict.  cap.  85. 

Tlh-  Me  reliant  Shipiying  Act,  1873. 

39  &  40  Vict.  cap.  80. 
The  Merchant  Shipping  Act,  1876. 

43  &  44  \'ICT.  CAP.  16. 
The  Merchant  iSeavien  {l\iijment  af  Wages  and  liating)  Act,  1880. 

43&41  Vkt.  CAP.  18. 
The  Merchant  Shipping  Act  Amendment  Act,  1880. 

13  &  44  ViCT.  CAP.  22. 

The  Merchant  Shipping  (Fee  and  Eapensex)  Act,  1880. 


620  MARITIME   LEGISLATION. 

43  &  44  Vict.  cap.  43. 
The  Merchant  Shipping  {Carnage  of  Grain)  Ad,  1880. 
45  &  46  Vict.  cap.  55. 
The  Merchant  Shipping  {Expenses)  Ad,  1882. 

45  &  46  Vict.  cap.  76. 
The  Merchant  Shipping  {Colonial  Inquiries)  Ad,  1882. 

Since  tlie  issue  of  the  second  edition  of  this  pubhca- 
tion,  the  foregoing  Acts  have  been  passed  by  our  Legis- 
lature on  the  subjects  here  under  consideration,  but  having 
carefully  considered  the  matters  treated  therein,  they  seem 
to  me  to  require  no  further  observations. 


621 


ADMIRALTY  JURISDICTION  OF  COUNTY 
COURTS. 

I  HAVE  from  time  to  time  been  requested  to  express  my 
opinions  on  the  various  Legislative  Enactments  which 
have  been  brought  forward  for  conferring  a  hmited  juris- 
diction in  Admiralty  matters  on  County  Courts,  and  if 
at  one  time  I  was  induced  to  urge  grave  objections  to 
such  a  course,  later  experience  has  shown  that  to  confer 
on  some  inferior  courts  a  subordinate  jurisdiction,  as  in 
salvage  cases  and  in  some  matters  of  minor  importance, 
such  as  Masters'  and  Seamen's  wages,  would  be  a  stej^  in 
the  ricfht  direction,  and  a  boon  to  the  tradinjT  interests  of 
all  Countries.  The  plea  of '  bringing  justice  to  everybody's 
door'  appeals  strongly  to  every  Legislature,  but  still  it 
should  not  be  overlooked  that  the  great  mass  of  Admiralty 
cases  are  too  important  and  technical  to  be  properly 
dealt  with  by  the  ordinary  County  Courts,  and  my  ex- 
perience leads  me  to  believe  that  Admiralty  jurisdiction 
should  only  be  granted  to  some  few  of  the  County  Courts 
at  the  leading  seaport  towns  which  are  presided  over  by 
Judges  acquainted  with  maritime  law,  and  which  are 
furnished  with  special  machinery,  such  as  is  pro^aded  on 
a  larger  scale  in  the  Admiralty  Division  of  the  High  Court. 
Admiralty  jurisdiction  has  now  been  conferred  on  a 
number  of  County  Courts  for  twenty  years,  but  my  opinion 
is  strengthened  by  the  fact  that  cases  have  frequently  come 
under  my  notice  which  show  the  undesirabilitv  of  those 


622  MAT^ITIME   LEGISLATION, 

tribunals  for  Atlniiralty  matters.  Of  course,  many  of  tlie 
objections  I  have  seen  to  the  County  Court  AdmiraUy 
jurisdiction  might  possibly  have  been  avoided  if  legisla- 
tion had  provided  methodically  for  the  practice  of  the 
Hio-h  Court  to  be  engrafted  into  the  County  Courts  in  so 
far.  as  it  could  be  done  with  a  due  regard  to  economy. 
For  instance,  the  provision  for  entering  a  caveat  against 
arrest  of  a  ship  is  a  most  valuable  and  economic  safeguard 
to  shipowners  against  arrest  and  detention  of  their  property, 
5^et  no  provision  is  made  in  either  of  the  County  Court 
Acts,  or  by  the  rules  made  in  pursuance  of  them,  for  the 
entry  of  a  caveat  against  arrest.  The  shipowner  is,  there- 
fore, left  by  the  Legislature  at  the  mercy  of  an  unscru^^ulous 
claimant,  who  can  arrest  his  ship  at  the  moment  she  is 
ready  to  sail,  provided  the  claim  is  sufficiently  small  in 
amount  to  confer  jurisdiction  on  the  County  Court.  This 
is  not  an  imaginary  grievance,  as  the  point  has  arisen  in 
practice  ;  but  it  is  only  due  to  the  County  Court  officials 
to  acknowledge  the  courtesy  with  wliicli  they  always 
endeavour,  so  far  as  lies  in  their  power,  to  give  the  ship- 
owner an  opportunity  of  making  a  money  deposit  in  lieu 
of  entering  a  caveat  in  order  to  secure  non  arrest.  Other 
curious  anomalies  have  arisen,  presumably  from  the  fact 
that  in  the  wording  of  the  County  Court  Acts  the  drafts- 
man lias  not  been  careful  to  follow  the  wording  of  the 
Admirahy  Court  Act  of  1801.  The  result  is  that  the  C^nmty 
Courts  have  a  more  extended  jurisdiction  in  rem  in  some 
cases  than  that  possessed  by  the  High  Court. ^  This  leads 
to  a  still  greater  anomaly,  as  the  High  Court,  having  no 
original  jurisdi(;t  ion  to  try  such  a  case,  is  the  appellate  court 
on  these  matters  from  the  decision  of  the  inlerior  court. - 
Anollici-  grc'il    objection   to  tlic  Count \-  Courts  is  that 

•  SJce  Brown  v.  Tlic  Alma,  7  I\L  L.  C.  (N.S.)  257. 
'-  'J"h(>  11(11111.  I-aw  Itcn.  7  1'.  D.  247. 


AmilRAl.TY  JURISDICTION  OF  COUNTY   COURTS.         02:5 


damages  are  generally  assessed  by  the  Court  at  tlic  trial 
instead  of  being  referred  to  the  licgislrar,  assisted  by  a 
Merehant  or  Merchants.  This  entails  a  great  amount  of 
unnecessary  expenditure  of  time  and  money,  and  does 
not  conduce  to  a  fair  settlement  of  the  amount  of 
damafjes.  It  is  well  known  that  a  Judiic  in  Court  cannot 
deal  with  pure  matters  of  accounts  or  figures  with  the 
same  accuracy  coml)iii('d  with  prompt  it  luh'  wliich  dis- 
tinguishes a  reference.  My  view  is  exemplified  csciv  day 
by  the  Judges  referring  pure  matters  of  account  to  a 
Master  or  arbitrator  for  assessment. 

It  appears  to  me  that  a  far  more  satisfactory  triliunal 
for  matters  of  so  great  importance  as  Admiralty  cases, 
dealing  as  they  do  in  a  great  mau}^  instances  Avitli  the  jjro- 
perty  and  right  of  foreigners,  would  be  to  appoint  certain  of 
the  County  Courts  as  Vice-Admiralty  Courts  with  a  similar 
jurisdiction,  up  to  a  limited  amount,  as  that  possessed  by 
the  Vice-Admiralty  Courts  abroad,  and  with  the  same 
rules  of  procedure,  except  that  an  appeal  should  be  to 
the  Admiralty  Branch  of  the  Supreme  Court  of  Judicature 
instead  of  to  the  Privy  Council.  The  Judges  of  these 
Courts,  which  should  each  embrace  specified  areas  of  sea- 
board, should  be  appointed  with  a  view  to  their  knowledf^e 
of  Admiralty  Law  as  well  as  their  general  legal  know- 
ledge, and  provision  should  be  made  for  their  holdino-  an 
Admiralty  Court  whenever  necessary.  At  present  great 
delay  and  expense  frecpiently  occur,  owing  to  the  fact  that 
the  general  business  of  a  County  Court  occupies  so  much 
of  the  Judge's  time  that  he  cannot  deal  with  Admiralty 
work  with  the  promptitude  by  which  the  High  Court  has 
earned  for  itself  the  grateful  acknowledgjnents  of  the 
mercantile  marine  world. 

On  this  subject  I  may  more  particularly  refer  to  my 
remarks  in  the  preface  to  the  second  edition,  s;nh  V. 


624  MARITIME   LEGISLATION. 


VI. 

SUGGESTIONS  FOR  THE  IMPROVEMENT  OF 
THE  ADMIRALTY  PRACTICE. 

I  CONFESS  that  I  viewed  with  alarm  the  merging  of  the 
Hifi-h  Court  of  Admiralty  by  the  Judicature  Acts  into  a 
branch  of  one  of  the  Divisions  of  the  Supreme  Court  of 
Judicature,  for  the  reasons  I  have  fully  set  out  in  the 
preface  to  the  second  edition,  sub  V.,  and,  the  new 
Court  of  Bankruptcy  not  having  been  disturbed,  I  did 
not  expect  that  the  old  and  venerable  Admiralty  Court 
would  l)e  changed. 

I  felt  at  once  that  many  and  great  difficulties  would 
arise,  I  have  frequently  pointed  out  that  if  the  Judge  of 
the  Admiralty  Division  were  to  go  Circuit,  as  was  originally 
intended,  the  Admiralty  suitor  would  be  a  great  sufferer. 
Fortunately  a  modus  vivendi  has  been  found,  and  the  two 
Judf^es  of  Probate,  Divorce,  and  Admiralty  find  their  time 
too  fully  occupied  with  the  business  of  that  Division  to 
justify  either  attending  assizes.  This  ensures  a  prompt 
despatch  of  Admiralty  business,  and  has  enabled  the 
Admiralty  Division  to  maintain  the  high  reputation  for 
acceleration  of  business  to  which  I  have  already  alluded 
in  a  former  chapter. 

Whilst  on  the  subject  of  Judges,  I  may,  perhaps, 
suf'gest  that  when  in  the  future  fresh  judicial  arrange- 
ments are  nuide  for  the  Probate,  Divorce,  and  Admiralty 
])lvisi()ii  it  would  !»<■  ;>  great  boon  to  suitors  if  one  Judge 
nloiK'   took  ,\(liniraliy   cases.     As  representative  of  many 


SUGGESTIONS   FOR    ADMIRALTY   TRACTICE,  G25 

underwriters  wlio  liave  cases  in  the  Conrt,  I  know  tliey  feel 
the  impossibiUty  for  two  minds  to  view,  in  the  same  hght, 
cases  depending  so  often  not  on  the  facts  of  a  case,  but 
on  the  weight  to  be  given  to  tliem.  Consequently  in  very 
many  cases  the  suitor  cannot  form  any  accurate  opinion  of 
the  result  of  his  case,  and  therefore  misses  the  great  ad- 
vantage which  it  is  one  of  the  highest  aims  of  a  Court  to 
offer,  viz.  the  knowledge  that,  given  certain  facts,  a  certain 
result  may  be  expected.  For  salvage  cases  this  is  par- 
ticularly important.  As  a  rule,  no  two  persons  would 
award  the  same  figure  on  the  same  state  of  facts,  but  a 
series  of  awards  from  the  same  Judge  would  enable  suitors 
to  form  an  accurate  opinion  of  the  Judge's  views  of  the 
merits  of  a  service  with  almost  certain  accuracy. 

This  suggestion  would  entail  no  loss  of  judicial  power, 
as,  if  the  Admiralty  work  was  not  sufficient,  the  Judge 
could,  as  he  does  now,  take  cases  from  the  list  of  the  other 
branch  of  the  Division. 

A  great  objection  to  the  provisions  of  the  rules  made 
under  the  Judicature  Act  is  the  power  to  initiate  Ad- 
miralty proceedings  in  all  District  Eegistries. 

It  struck  me  as  an  anomaly  that  a  District  Eegistrar 
of  some  Midland  District  Eegistry  might  issue  a  warrant 
to  arrest  a  ship  in  London  or  Liverpool  in  a  bottomry 
action.  I  doubt  if  such  a  contingency  was  considered 
when  the  rules  were  framed,  but  surely  such  a  state  of 
things  should  not  be  possible.  It  is  a  fact  that  warrants 
are  frequently  issued  in  outport  registries,  and  serious 
difficulty  and  delay  often  occur  in  obtaining  a  release,  as 
it  is  frequently  undesirable  for  a  defendant  to  enter  an 
appearance  in  the  District  Eegistry,  and  consequently  the 
ship  must  remain  under  arrest  until  the  papers  are  sent  to 
the  Principal  from  the  District  Eegistry. 

On  this  question  I  venture  to  suggest  that,  as  I  have 

s  s 


626  MAlilTLME    LEGISLATION. 

proposed  with  Yice-Admiralty  in  lieu  of  County  Courts, 
so  Tvith  the  District  Eegistries  of  the  High  Court,  districts 
embracing  the  principal  ports  should  be  carved  out  over 
which  the  most  important  District  Eegistry  might  exercise 
jurisdiction,  but  in  all  cases  I  hold  it  most  important  that 
so  soon  as  a  District  Eegistry  issues  a  writ  or  warrant,  a 
copy  should  be  transmitted  to  the  Principal  Eegistry  in 
order  that  an  appearance  may  be  entered  and  release 
extracted  there  without  delay,  and,  if  my  suggestion  in 
the  previous  chapter  respecting  the  establishment  of  Vice- 
Admiralty  Courts  is  adopted,  the  District  Eegistries  in 
Admiralty  causes  might  be  united  with  the  Yice-Admiralty 
Courts. 


CyJl 


VII. 
FRElGIir   WHEN  SHIP  ABANDONED  AT  SEA. 

Probably  no  decision  of  our  Law  Courts,  since  the  re- 
markable case  of  the  '  Marie  de  Brabant,'  has  caused  so 
much  surprise  among  those  interested  in  maritime  com- 
merce as  that  of  the  '  Cito '  (Law  Reports,  7  P.  D.  5). 

The  '  Cito,'  a  Norwegian  barque,  bound  with  a  cargo  of 
rosin  in  barrels  from  Wilmington,  U.S.,  to  Eotterdam,  was, 
owing  to  the  perils  of  the  sea,  abandoned  by  her  crew 
off  the  American  coast.  Some  time  afterwards  she  was 
picked  up  by  another  Norwegian  vessel  called  the  '  Colonist,' 
brought  into  Plymouth  and  arrested  there  with  her  cargo 
on  board  for  the  salvage  services  rendered  by  the  'Colonist' 
and  her  crew. 

Before  the  Norwegian  owners  of  the  '  Cito  '  could  make 
arrangements  for  the  release  of  the  vessel,  preparatory  to 
sailing  her  to  Eotterdam,  in  order  to  complete  their  con- 
tract of  Affreightment,  the  holders  of  the  bills  of  ladinp- 
applied  to  the  Admiralty  Division  for  an  order  that,  upon 
their  giving  bail  to  the  salvors  for  am^  salvage  due  from 
the  cargo,  the  same  should  be  released  to  them  without 
payment  of  any  freight. 

Some  time  previously  a  somewhat  similar  case  had  come 
before  the  Court.  The  '  Kathleen,'  an  American  barque, 
bound  with  a  cargo  of  cotton  in  bales  from  Charleston 
to  Bremen,  after  collision  in  the  Channel  had  been  aban- 
doned and  brought  as  a  derelict  into  Dover.  An  order 
having  subsequently  been  made  by  the  Couit  for  the  cargo 

s  s  2 


623  MARITIME   LEGISLATION. 

to  be  sold,  the  owners  of  tlie  ship  moved  the  Court  to  set 
aside  the  order,  or,  if  it  stood,  to  direct  that  the  freight 
should  be  paid  out  of  the  proceeds  of  the  sale.  The  Judge, 
liowever,  held  that  the  owners  of  the  barque  were  not  en- 
titled to  any  pajTiient  in  respect  of  freight,  on  the  ground 
that,  by  the  abandonment  of  the  barque,  the  contract 
to  pay  freight  had  been  dissolved. 

At  first  sight  it  may  aj)pear  difficult  to  draw  a  distinc- 
tion between  these  two  cases.  Both  vessels  were  abandoned 
in  the  course  of  their  voyages,  and  both  were  afterwards 
broucfht  in  as  derelicts.  There  was,  however,  a  material 
and,  as  I  consider,  a  vital  distinction  between  them,  inas- 
much as  the  cargo  of  the  '  Kathleen '  was  in  so  damaged  a 
state  that  the  properly  appointed  surveyors  considered  its 
transportation  to  Bremen  impossible,  and  the  vessel  her- 
self was  a  complete  wreck,  quite  unfit  to  carry  the  cargo 
on ;  while  the  cargo  of  the  '  Cito,'  on  the  other  hand,  was 
not  injured  at  all,  and  the  'Cito'  was  little  damaged,  and 
with  very  little  repair  could,  without  discharging  her 
cargo,  have  continued  and  completed  her  voyage. 

Sir  Eobert  Phillimore,  however,  who  was  at  the  time 
Judge  of  the  Admiralty  Division,  was  unable  to  see  that 
the  circumstances  of  the  two  cases  were  materially  dis- 
tinct, and,  considering  himself  Ijound  by  his  own  previous 
decision  in  the  '  Kathleen,'  he  ordered  the  cargo  of  the 
'  Cito '  to  be  delivered  to  the  owners  without  payment  of  any 
freif^ht.  The  owners  of  the  '  Cito '  appealed,  but  the  order 
was  confirmed  by  the  Court  of  Appeal.  The  Lords 
Justices  of  Appeal  did  not  go  the  length  of  saying  that 
the  abandonment  of  the  vessel  put  an  end  to  tlu^  contract, 
but  tliey  all  expressed  the  opiiiion  that,  by  the  abandon- 
ment of  a  ship,  the  shipowner  does  as  far  as  he  can  aban- 
don the  contract  so  as  to  allow  the  other  party  to  it,  the 
fnrLfo-rjwiior.  to  fron1  it  ;is  abandoned.    Tlie  result  is  much 


FREIGHT   WHEN   SHIP   ABANDOXED   AT   SEA.  Gl>9 

the  same ;  so  long  as  this  '  Cito  '  decision  stands,  it  gives 
the  cargo-owner  the  full  option  to  take  advantage  of  the 
common  misfortune  for  the  purpose  of  evading  the  con- 
tract entered  into  by  him.  This,  I  confidentially  assert,  is 
opposed  to  every  principle  of  law  and  justice.  A  contract 
by  the  law  of  every  civilised  country  holds  good  until 
both  parties  to  it,  of  their  own  freewill,  agree  that  it  shall 
not  be  carried  out.  Xow,  how  can  the  abandonment 
of  a  ship  in  such  a  case  as  the  '  Cito '  be  taken  to  be  an 
expression  of  an  agreement  on  the  part  of  the  owners  of 
the  vessel  to  cancel  the  contract  ?  The  action  of  the  crew 
in  leaving  a  vessel  to  save  their  lives  is  not  an  act  of  will 
at  all ;  they  have  to  desert  their  vessel  under  the  pressure 
of  a  vis  major ;  how  can  this  be  taken  to  show  an  agree- 
ment on  the  part  of  the  shipowner  to  abandon  his  part 
of  the  contract  ?  He  has  no  power  to  exercise  any  option 
at  all.  If,  when  the  vessel  is  recovered  and  the  owner 
again  requires  the  power  to  exercise  his  will  in  the  matter, 
he  then  elects  not  to  carry  out  his  contract  and  the  cargo- 
owner  agrees,  well  and  good,  the  contract  is  put  an  end 
to  by  mutual  consent.  To  assume,  however,  such  consent 
on  the  part  of  one  of  the  contracting  parties  from  an 
action  forced  on  his  servants  by  a  power  which  cannot  be 
resisted  seems  to  me  to  be  a  doctrine  utterly  opposed  to 
common  sense. 


030  :\iAmTiMi:  legislation. 


YIII. 

REASONS  ichy  the  making  away  icith  or  aiding  and 
abetting  in  scuttling  or  otherwise  destroying  a  vessel 
for  the  purpose  of  defrauding  its  undemcriters  or  others 
icho  have  an  interest  therein,  or  in  the  cargo  or  freight, 
should  by  agreement  between  the  principal  maritime 
nations  be  deemed  and  taken  to  be  an  Act  of  Piracy} 

Wheaton  states,  in  his  '  Elements  of  International  Law,' 
vol.  i.  p.  256,  edition  18G4  :  '  Piracy  nnder  the  law  of 
nations  may  be  tried  and  punished  in  the  conrts  of  justice 
of  any  nation,  by  whomsoever,  and  wheresoever  com- 
mitted,^ but  piracy  created  by  municipal  statute  can  only 
be  tried  by  that  state  within  whose  territorial  jurisdiction, 
and  on  board  of  whose  vessels,  the  offence  thus  created 
was  committed.  There  are  certain  acts  which  are  con- 
sidered piracy  by  the  internal  laws  of  a  state,  to  which  the 
law  of  nations  does  not  attach  the  same  signification.  It 
is  not  by  force  of  the  international  law  that  those  who 
commit  these  acts  are  tried  and  punished,  but  in  conse- 
quence of  special  laws  which  assimilate  them  to  pirates, 
and  wliich  can  only  be  apj)lied  by  the  state  which  has 
enacted  them,  and  then  with  reference  to  its  own  subjects, 
and  in  places  within  its  own  jurisdiction.  The  crimes  of 
murder  and  robbery,  committed  by  foreigners  on  board 

'  Transmitted  to  His  Grace  the  Duke  of  Richmond,  K.G.,  President  of 
the  Board  of  Trade. 

'*  '  Every  man,  l)y  the  nsaf,'c  of  our  Euroiican  nations,  is  jnsticial)le  in  the 
jilaco  whore  theci'ime  is  conmiitted ;  so  are  pirates,  lioinf,'  reputed  out  of  the 
j)rotoction  of  all  laws  and  privileges,  and  to  be  tiit d  in  wliat  parts  soever  they 
may  be  taken.'     Sir  Lcolinc  Jcnkbia,  vol.  ii.  p.  711. 


WILFUL   DESTRUCTION   OF   PROPERTY   AT   SEA.         081 

of  a  Ibreign  vessel  on  the  liigh  seas,  are  not  justiciable  in 
tlie  tribunals  of  auotlier  country  tlian  that  to  which  the 
vessel  belongs,  but  if  committed  on  l)oard  of  a  vessel 
not  at  the  time  belonging,  in  fact  as  well  as  in  right,  to 
any  foreign  power  or  its  subjects,  but  in  possession  of  a 
crew  acting  in  defiance  of  all  law,  and  acknowledging 
obedience  to  no  flag  whatsoever,  these  crimes  may  be 
punished  as  piracy  under  the  law  of  nations,  in  the  courts 
of  any  nation  having  custody  of  tlie  offenders.' 

This  distinction  of  piracy  under  tlie  law  of  nations 
and  piracy  under  the  municipal  law  has  of  late  become  a 
matter  of  serious  consideration  for  those  interested  in  the 
maritime  commerce  of  the  world. 

For  although,  thanks  to  the  progress  of  civilisation, 
cases  of  piracy  in  the  common  sense  of  the  word  have 
become  almost  extinct,  except  in  the  Chinese  and  in  some 
parts  of  the  Indian  waters,  the  great  extension  of  mari- 
time commerce  and  enterprise  has  brought  into  promin- 
ence a  class  of  people  who  appear  to  make  it  their  regular 
business  to  defraud  underwriters  and  others,  by  means  of 
fictitious  insurances  on  ships,  on  freight,  on  goods,  on 
advances,  or  on  other  insurable  risks  in  respect  to  voyages 
on  which  the  ships  themselves  are  intended  to  be  cast 
awa}'. 

And  the  enormity  of  their  crimes  is  aggravated  by  the 
fact,  that  for  the  sake  of  a  gain  sometimes  comparatively 
insignificant,  property  of  the  greatest  value  is  sacrificed ; 
valuable  cargoes,  for  instance,  belonging  to  innocent 
owners  have  sometimes  been  destroyed  simply  in  order  to 
enable  the  owners  of  the  vessel  or  his  accomplices  to  make 
a  profit  out  of  an  over-insurance  of  the  vessel. 

These  crimes,  altliough  hitherto  not  commonly  com- 
prised under  the  designation  of  '  piracy,'  appear  to  me 
to  deserve  to  be  ranked  with  that  class  wliicli  AVheaton 


632  MARITIME    TJCGISLATIOX. 

defines  as  piracy  under  municipal  statute,  a  construction 
adopted  also  b}'  the  late  Mr.  M'Cullocli  (Dictionary),  who 
begins  an  able  article  on  this  subject  with  the  following 
words :  '  Piracy  consists  in  conunitting  those  acts  of 
robbery  and  violence  upon  the  seas  that,  if  committed 
upon  land,  would  amount  to  felony,'  &c. 

Now,  in  searching  the  statutes  of  the  realm,  I  find  that 
the  following  enactments  have  been  passed  relating  to  this 
subject,  viz. : — 

I.  27  Henri)  VIII.  cap.  4. — x\n  Act  declaring  the  order  and 
punishment  of  pirates  and  robbers  on  the  sea. 

II.  11  a7id  12  William  III.  cap.  7. — An  Act  for  the  more 
eflFectual  suppression  of  piracy. 

III.  2  George  II.  cap.  28. — An  Act  for  making"  perpetual  an 
Act  therein  mentioned  for  suppressing  of  piracy. 

IV.  18  George  II.  cap.  30. — An  Act  to  amend  an  Act  made  in 
the  11th  3"ear  of  the  reign  of  William  III.  intituled  'An  Act  for 
the  more  effectual  suppression  of  piracy.' 

V.  7  and  8  George  IV.  cap.  oO. — An  Act  for  consolidating  and 
amending  the  laws  in  England  relative  to  malicious  injuries  to 
property. 

\'I.  9  George  IV.  cap.  56. — An  Act  for  consoHdating  and 
amending  the  laws  in  Irehind  relative  to  malicious  injuries  to 
]iroperty. 

\ll.  1  Victoria,  cap.  88. — An  Act  to  amend  certain  acts  re- 
lating to  the  crime  of  piracy. 

WVl.  1  Victoria,  cap.  89. — An  Act  to  amend  the  laws  relating 
to  burning  or  destroying  buildings  and  ships. 

IX.  12  and  13  Victoria,  cap.  90. — An  Act  to  provide  for  the 
prosecution  and  trial  in  Her  Majesty's  Colonies,  of  offences  com- 
mitted within  the  jurisdiction  of  the  Admiralty. 

X.  13  and  14  Victoria,  cap.  26. — An  Act  to  repeal  an  Act  of 
the  6th  year  of  King  George  IV.  for  encouraging  the  capture  or 
destruction  of  piralical  ships  and  vessels,  and  to  make  other  pro- 
visions in  lieu  tliereof. 

XI.  ]:>   "/'/  II  Victoria,  cap.  27. — An  Act   to  provide  I'or  the 


WILFUL   DESTRUCTION   OF  PROPERTY   AT   SEA.         G33 

commencement  of  an  Act  of  tlio  present  Session,  intituled  '  An  Act 
to  repeal  an  Act,'  &c.  (see  No.  X.). 

XII.  2'i  and  25  Victoria,  mp.  97.— An  Act  to  consolidate  nnd 
amend  the  statute  law  of  England  and  Ireland  relating  to  malicious 
injuries  to  property. 

The  following  sections  of  this  last  Act  especially  treat 
of  offences  committed  against  shipping  property,  and 
they  may  be  said  to  constitute  the  present  statute  law 
on  the  subject : — 

'  42.  Whosoever  shall  unlawfully  and  maliciously  set  fire  to, 
cast  away,  or  in  anywise  destroy  any  ship  or  vessel,  whether  the 
same  be  complete  or  in  an  unfinished  state,  shall  be  guilty  of  felony, 
and  being  convicted  thereof,  shall  be  liable,  at  the  discretion  of 
the  Court,  to  be  kept  in  penal  servitude  for  life  or  for  any  term 
not  less  than  three  years,  or  to  be  imprisoned  for  any  term  not 
exceeding  two  years,  with  or  without  hard  labour,  and  with  or 
without  solitary  confinement,  and,  if  a  male  under  the  age  of 
sixteen  years,  with  or  without  whipping. 

'  43.  Whosoever  shall  unlawfully  and  maliciously  set  fire  to, 
or  cast  away,  or  in  anywise  destroy  any  ship  or  vessel,  with  intent 
thereby  to  prejudice  any  owner  or  part-owner  of  such  ship  or 
vessel,  or  of  any  goods  on  board  the  same,  or  any  person  that  has 
underwritten  or  shall  underwrite  any  policy  of  insurance  upon 
such  ship  or  vessel  or  on  the  freight  thereof,  or  upon  any  goods  on 
board  the  same,  shall  be  guilty  of  felony,  and  being  convicted 
thereof,  shall  be  liable,  at  the  discretion  of  the  Court,  to  be  kept 
in  penal  servitude  for  life,  or  for  any  term  not  less  than  three  years, 
or  to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or 
without  hard  labour,  and  with  or  without  solitary  confinement, 
and,  if  a  male  under  the  age  of  sixteen  years,  with  or  without 
whipping. 

'  44.  Whosoever  shall  unlawfully  and  maliciously,  by  any 
overt  act,  attempt  to  set  fire  to,  cast  away,  or  destroy  any  ship  or 
vessel,  under  such  circumstances,  that  if  the  ship  or  vessel  were 
thereby  set  fire  to,  cast  away,  or  destroyed,  the  offender  would  be 
guilty  of  felony,   shall  be  guilty  of  felony,  and  being    convicted 


634  rviARITDIE   LEGISLATION. 

thereof,  shall  be  liable,  at  the  discretion  of  the  Court,  to  be  kept 
in  penal  ser\'itude  for  any  term  not  exceeding  fourteen,  and  not 
less  than  three  years,  or  to  be  imprisoned  for  any  term  not  exceed- 
ino-  two  years,  with  or  without  hard  labour,  and  with  or  without 
solitaiy  confinement,  and,  if  a  male  under  the  age  of  sixteen  years, 
with  or  without  whipping. 

'  45.  Whosoever  shall  unlawfully  and  maliciously  place  or 
throw  in,  into,  upon,  against,  or  near  any  ship  or  vessel  any 
gunpowder,  or  other  explosive  substance,  with  intent  to  destroy  or 
damage  any  ship  or  vessel,  or  any  machinery,  working-tools,  goods 
or  chattels,  shall,  whether  or  not  any  explosion  take  place,  and 
whether  or  not  any  injury  be  effected,  be  guilty  of  felony,  and 
being  convicted  thereof,  shall  be  liable,  at  the  discretion  of  the 
Court,  to  be  kept  in  penal  servitude  for  any  term  not  exceeding 
fourteen,  and  not  less  than  three  years,  or  to  be  imprisoned  for 
any  term  not  exceeding  two  years,  with  or  without  hard  labour, 
and  with  or  without  solitary  confinement,  and,  if  a  male  under  the 
age  of  sixteen  years,  with  or  without  whipping. 

'  4G.  Whosoever  shall  unlawfully  and  maliciously  damage, 
otherwise  than  by  fire,  gunpowder,  or  other  explosive  substance, 
any  ship  or  vessel,  whether  complete  or  in  an  unfinished  state, 
with  intent  to  destroy  the  same  or  render  the  same  useless,  shall 
be  guilty  of  felony,  and  being  convicted  thereof  shall  be  liable,  at 
the  discretion  of  the  Court,  to  be  kept  in  penal  servitude  for  any 
term  not  exceeding  seven  years,  and  not  less  than  three  years,  or 
to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or 
without  hard  labour,  and  with  or  without  solitary  confinement, 
and,  if  a  male  under  the  age  of  sixteen  years,  with  or  without 
\\  liijiping. 

'  47.  Whosoever  shall  unlawfully  mask,  alter,  or  remove  any 
light  or  signal,  or  unlawfully  exhibit  any  false  light  or  signal,  with 
intent  to  bring  any  ship,  vessel,  or  boat  into  danger,  or  shall  un- 
lawfully and  maliciously  do  anything  tending  to  the  immediate 
loss  or  destruction  of  any  slii]),  vessel,  or  boat,  and  for  which  no 
])unis}iment  is  hereinbefore  provided,  shall  be  guilty  of  felony,  and 
being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the 
Court,  to  be  kept  in  penal   ser\il  ude  lor  life,  or  i'or  any  term  not 


WILFUL    Di: S'l TtUCTION   OF   rROPERTY    AT   SEA.         <!35 

less  thiui  three  years,  or  to  be  imprisoned  for  any  term  not  exceeding 
two  years,  with  or  wiflumt  hard  hibour,  and  witli  or  without  soli- 
tary confinement,  and,  if  a  male  under  the  age  of  sixteen  years, 
with  or  without  whipping. 

'49.  Whosoever  shall  unlawfully  and  maliciously  destroy  any 
part  of  any  ship  or  vessel  wliich  shall  be  in  distress  or  wrecked, 
stranded,  or  cast  ashore,  or  any  goods,  merchandise,  or  articles  of 
any  kind  belonging  to  such  ship  or  vessel,  shall  be  guilty  of  felony, 
and  being  convicted  thereof  shall  be  liable,  at  the  discretion  of  the 
Court,  to  be  kept  in  penal  servitude  for  any  term  not  exceeding 
fourteen  and  not  less  than  three  years,  or  to  be  imprisoned  for  any 
term  not  exceeding  two  years,  with  or  without  hard  labour,  and 
with  or  without  solitary  confinement. 

'  72.  All  indiclable  offences  mentioned  in  this  Act  which  shall 
be  committed  within  the  jurisdiction  of  the  Admiralty  of  England 
or  Ireland,  shall  be  deemed  to  be  offences  of  the  same  nature  and 
liable  to  the  same  punishments  as  if  they  had  been  committed 
upon  the  land  in  England  or  Ireland,  and  may  be  dealt  with, 
inquired  of,  tried,  and  determined  in  any  county  or  place  in  Eng- 
land or  Ireland  in  which  the  offender  shall  be  apprehended  or  be 
in  custod}",  in  the  same  manner  in  all  respects  as  if  they  had  been 
actually  committed  in  that  county  or  place ;  and  in  any  indictment 
for  any  such  offence,  or  for  being  an  accessory  to  such  an  offence, 
the  venue  in  the  margin  shall  be  the  same  as  if  the  offence  had 
been  committed  in  such  county  or  place,  and  the  offence  shall  be 
averred  to  have  been  committed  "  on  the  high  seas ;  "  provided 
that  nothing  herein  contained  shall  alter  or  affect  any  of  the  laws 
relating  to  the  government  of  Her  Majesty's  land  or  naval  foi'ces.' 


Under  the  rapid  extension  of  maritime  commerce  and 
the  ]nore  liberal  navigation  laws  of  modern  times,  whereby 
vessels  of  all  nationalities  may  not  only  frequent  without 
restriction  the  ports  of  their  own  country  but  can  trade 
freely  from  and  to  almost  any  foreign  place,  the  laws  now 
generally  in  force  are  insufficient  for  the  suppression  of 
the  above  described  malicious  destruction  of  property. 


636  MARITIME   LECflSLATION. 

For  instance,  if  a  crime  against  property  upon  wliicli 
insurance  has  been  made  in  England  be  committed  upori 
the  high  seas  on  board  a  foreign  ship,  no  steps  can  be 
taken  a^^ainst  the  offender  in  Eno-land,  even  if  he  after- 
wards  make  his  appearance  in  England,  because  neither 
the  law  of  nations  nor  the  statute  law  of  England  con- 
fers ujDon  English  tribunals  any  jurisdiction  over  the 
crime. 

A  similar  state  of  thiufjs  exists  as  re^'ards  other 
nations,  and  the  facilities  of  locomotion  and  intercourse 
with  foreign  countries  make  it  an  easy  thing  for  guilty 
persons  to  keep  out  of  reach  of  the  tribunals  of  the 
country  to  which  the  ship  belongs,  where  alone  he  can 
be  made  amenable  to  justice.  Cases  of  this  description, 
far  from  being  of  rare  occurrence,  have  of  late  years 
increased,  and  are  becoming  a  cause  of  serious  loss  to 
persons  concerned  in  maritime  enterprise,  more  especially 
to  underwriters. 

Ill  order  to  show  more  clearly  the  state  at  which  we 
have  arrived,  I  subjoin  abstracts  of  different  cases,  dis- 
tinguished alphabetically,  the  details  of  which  have  come 
during  the  last  few  years  under  my  own  personal  knowledge 
and  observation,  viz.  : — 

A. 

This  vessel  was  lost  in  1861,  in  the  English  Channel, 
while  on  a  voyage  from  France  to  the  Black  Sea,  with  a 
cargo  worth  about  1,200/.,  but  insured  for  14,000/. 
Great  suspicions  were  at  the  time  entertained,  but  no 
effect  ual  steps  could  l)e  taken  in  this  country,  and  the 
underwriters  therefore  were  advised  to  compromise  the 
claim,  which  they  did  by  payment  of  10,000/.  The 
matter,  coming  to  the  knowledge  of  the  French  authorities, 
was  taken  in  hand  by  the  Fublic  Prosecutor,  and  the  re- 


WILFUL   DESTRUCTION   OF   PROPERTY   AT   SEA.         G37 

suit  was  that  tlie  master  of  the  vessel  and  five  others  were 
brought  to  trial,  when  they  confessed  that  they  had  formed 
a  conspiracy  to  Ijuy  and  over-insure  vessels  and  their 
cargoes,  and  that  the  same  were  then  to  be  fraudulently 
destroyed  ;  and  they  stated  that  the  prime  mover  in  the 
affair  was  a  man  living  in  London,  by  whom  the  above 
caro^o  had  been  boufjlit,  and  who  had  received  the  insur- 
ance.  Subsequent  proceedings  taken  criminally  agahist 
this  person  in  France  were  unsuccessful,  ])ut  lie  was  con- 
demned to  repay  the  10, ()()()/.,  wliich,  however,  liave  never 
been  recovered. 

B. 

This  was  a  British  vessel  which  sailed  from  Belgium 
for  Spain  in  1862,  with  a  heavy  cargo,  and  put  l)ack 
under  pretence  of  having  broken  her  windlass.  Joeing 
grounded  on  the  mud  she  was  there  rejDorted  to  have 
strained  and  was  discharged  to  be  repaired,  but  the  nature 
of  the  repairs  done  was  such  as  to  prove  that  the  ship  was 
from  decay  unfit  to  carry  the  cargo  put  into  her.  Being 
taken  out  into  the  roads  she  was  allowed  to  drift  ashore, 
which  necessitated  a  further  repair,  and  in  the  end  about 
2,000^.  were  borrowed  on  bottomry  at  exorbitant  rates  of 
premium  (40  and  45  per  cent.),  the  accounts  rendered 
being  even  then  not  satisfactory  as  to  the  disposal  of  so 
large  a  sum  of  money.  Sailing  at  last  from  Flushino-,  the 
ship  only  got  as  far  as  the  English  Channel,  where  she  put 
into  a  port,  and  as  no  more  money  could  be  obtained  on 
bottomry  the  master  endeavoured  to  sell  part  of  the  caro-o, 
which,  however,  was  prevented  by  energetic  action  on  the 
part  of  the  underwriters'  representatives  ;  but  even  then 
the  cargo  could  not  be  got  out  of  the  captain's  hands 
until  the  whole  freight  due  by  cliarter  to  tlie  port  of 
destination  was  paid  liim  ;   and  besides  all  the  expenses 


638  MArJTIME   LEGISLATIOX. 

previously  incurred  the  underwriters  had  to  bear  the  cost 
of  transport  for  the  remaining  part  of  the  voyage. 

C. 

This  vessel  was  the  property  of  a  native  of  Germany, 
and  sailed  under  the  Peruvian  flag.  On  November  4, 1862, 
she  left  Bahia  for  London  with  a  cargo  declared  to  consist 
of  coffee  and  other  goods,  which  were  insured  for  an 
enormous  amount  (upwards  of  30,000/.)  in  London,  Paris, 
Bremen,  Hamburg,  &c.  She  was  scuttled  and  abandoned 
on  December  19,  in  the  neighbourhood  of  the  Azores,  and 
on  investigation  it  was  ascertained  that  by  far  the  larger 
portion  of  the  goods  thus  insured  had  never  been  sliij)ped 
at  all,  and  that  the  bills  of  lading  or  policies  of  insurance 
in  fact  represented  goods  which  had  never  had  any  exist- 
ence. In  spite  of  the  fullest  evidence  given  by  the  crew 
the  laws  of  this  kingdom  were  powerless  in  the  matter, 
and  no  steps  could  be  taken  against  the  master,  who,  how- 
ever, fortunately  left  London  for  Hamburg  to  attempt  to 
collect  insurances  which  had  been  effected  there  on  goods 
alleged  to  have  been  shipped  on  his  own  account ;  he  was 
at  once  seized  and  condemned  to  three  years'  imprisonment, 
payment  of  all  costs,  and  subsequent  perpetual  banishment 
from  the  city  and  district  of  Hamburg.  He  made  a  full 
confession  of  the  frauds,  the  losses  occasioned  by  which 
fell  heavily,  not  only  upon  underwriters  and  insurance 
offices,  but  upon  London  merchants  who  had  made  advances 
on  the  faith  of  spurious  documents. 

The  frauds  were  instigated  by  a  firm  of  merchants 
of  Bahia,  and  their  complicity  was  manifest;  but  one 
member  of  the  firm  was  allowed  to  aljscond,  and  the 
remaining  Dartiicr,  althou<di  brcnijj'ht  to  trial  l)('rore  a 
Brazilian  court,  was  acrpiitted,  because  he  threw  all  tlie 
blame  upon  the  absentee. 


WILFUL   DESTRUCTION   OF   PROPERTY   AT   SEA.         cno 

A  very  full  report  of  (his  case  appears  in  the 
'  Shipping  Gazette  '  of  April  8,  1863. 

T). 

This  Portuguese  vessel  was  owned  hj  a  man  who  had 
been  connected  witli  tlio  firm  which  was  broken  up  by 
the  detection  of  their  fraudulent  complicity  in  tlie  previous 
case.  The  vessel  sailed  in  1862  from  Bahia  to  a  Por- 
tuguese port,  and  very  large  insurances  were  effected  in 
Paris,  Marseilles,  and  Genoa  upon  cargo  alleged  to  have 
been  shipped  by  her.  She  was  lost  very  shortly  after 
sailing,  and  on  inquiry  it  was  found  that  the  greater 
portion  of  the  pretended  shipments  were  fictitious,  that 
all  the  master's  clothes  and  effects  had  been  removed 
before  sailing,  and  tliat  the  master,  who  was  an  uncle  of 
the  owner,  had  been  put  on  board  on  purpose  to  make 
away  with  the  ship.  The  fictitious  shipments  were  all  in 
the  name  of  the  one  firm  to  which  reference  has  already 
been  made. 

E. 

This  was  a  foreign  vessel  bound  from  London  to  a 
Dutch  port  with  a  cargo  of  linseed  in  1863.  She  foun- 
dered before  she  left  the  river  Thames,  and  he'mg  sub- 
sequently raised  by  divers  it  was  ascertained  that  the 
lashings  of  the  bow-port  had  been  cut  from  the  inside 
and  the  port  knocked  out.  The  master  and  crew  liavino" 
disappeared  before  this  was  discovered,  no  steps  could  be 
taken  against  them. 

F. 

This  was  a  foreign  vessel  bound,  in  1803,  from  Scot- 
land to  an  English  port,  witli  a  cargo  of  pig-iron,  and 
was  abandoned  in  a  sinking  state  by  the  crew.  On  in- 
vestigation, it  turned  out  that  the  ship  had  been  doubly 


640  MARITIME   LEGISLATION. 

insured,  and  the  second  insurance,  wliicli  had  ah'eady 
been  paid,  was  refunded  to  the  British  underwriters  ;  and 
as  the  first  insurance  done  abroad  was,  by  the  terms  of 
the  poHcY,  avoided,  in  case  of  any  subsequent  insurance 
being  done  on  the  same  interest,  the  underwriters  on  ship 
escaped  all  loss  in  this  case.  Those  on  cargo  of  course 
were  obliged  to  pay. 

G. 

This  vessel  belonged  to  one  of  the  South  American 
republics,  and  was  commanded  by  a  German  captain, 
who  had  traded  for  some  j^ears  in  that  neighbourhood. 
She  sailed  in  1863  from  Spain  for  their  port  of  registra- 
tion, with  a  light  cargo  of  salt,  and  on  nearing  one  of  the 
Western  Islands,  two  auger-holes  were  bored  in  her  by 
the  mate,  upon  instructions  given  by  the  master,  and 
she  began  to  fill  rapidly.  Being  sighted  from  the  island, 
however,  a  pilot  went  off  to  her,  and  shaped  her  course 
towards  the  harbour ;  and  as  the  master  soon  perceived 
that  she  would  not  sink  before  reaching  it,  he  himself 
took  the  helm  and  ran  her  on  to  the  beach,  where  she 
remained.  During  the  investigation  which  followed,  the 
above  facts  were  deposed  to  on  oath  by  one  of  the  crew, 
and  on  examination  the  auger-holes  were  actually  found 
in  the  position  described.  The  underwriters,  therefore, 
refused  to  pay  the  demands  made  upon  them,  and  the 
question  is  still  being  contested. 

H. 

This  vessel,  belonging  to  one  of  the  British  colonies, 
wliile  on  a  voyage  from  South  America  to  the  Continent 
in  18G3,  was  compelled  by  heavy  weather  to  put  into  a 
riiaiiiiel  ])()i-l  for  repairs,  where  a  new  mainmast  was  })ut 
ill,  i'ov  whieli  |)iii'i)()se  cargo  had  to  be  sJiifted,  and  a  space 


WILFUL    DESrilUCTION    OF    PROPERTY   AT   SEA.         G41 

made  down  to  the  keelson  of  the  vessel ;  ;it  that  time  the 
cargo  was  perfectly  sound  and  cool.  The  day  after  she 
had  resumed  her  voyage  it  was  noticed  that  the  ship  felt 
warmer  than  usual,  but  no  steps  were  taken  to  ascertain 
the  cause,  and  on  the  following  day  she  was  totally  con- 
sumed by  fire.  Upon  investigation  made  ])y  the  under- 
writers' representative,  circumstances  came  to  light  which 
showed  the  greatest  negligence,  if  not  culpability,  of  the 
master.  The  Board  of  Trade  declined,  however,  to  order 
an  investigation,  on  the  ground  that  the  master  had  no 
certificate  which  could  be  either  withdrawn  or  suspended, 
because  the  vessel,  although  hoisting  tlie  British  flag, 
hailed  from  a  colonial  port. 


This  was  a  Prussian  vessel  bound  from  Antwerp  to 
New  York,  which  sailed  in  December  1863,  put  into 
Eamsgate  for  repairs  in  the  same  month,  and  in  April 
1864  sailed  again  for  her  destination.  Six  days  after- 
wards she  was  wilfully  sunk  off  the  Scilly  Islands,  and 
property  insured  for  nearly  30,000/.  was  thus  made  away 
with.  On  investigation,  the  circumstances  of  the  case 
were  clearly  ascertained,  and  in  order,  if  possible,  to  pro- 
cure a  conviction  in  this  country,  the  carpenter,  who  had 
actually  bored  the  holes  in  the  vessel,  was  arrested  and 
committed  for  trial  at  Maidstone ;  but  the  only  cliartre 
of  which  our  Courts  could  take  cognisance  was  one  of 
conspiring,  while  in  British  jurisdiction  (at  Eamsgate), 
to  commit  frauds  which  were  afterwards  actually  com- 
mitted beyond  the  jurisdiction  ;  on  this  technical  question 
the  prosecution  failed,  although  the  facts  were  so  little 
denied  that  it  was  actually  proved  that  at  the  ti-ial  Ijotli 
prisoner  and  witnesses  were  wearing  clotlies  made  out  of 
cloth  stolen  in  Eamsgate  from  the  cargo,  thus  clearly  show- 

T  T 


042  MATIITIME    LEGISLATION. 

ing  that  at  that  time  tlie  ship  was  intended  never  to  reach 
her  destination. 

The  owner,  master  and  mate  being,  after  great  exer-. 
tion  on  the  part  of  the  underwriters'  representative ^ 
arrested  and  brono-lit  to  trial  in  Prussia,  were  convicted 
and  sentenced  to  eight,  five,  and  three  years'  penal  servi- 
tude respectively. 

The  underwriters  on  cargo,  residing  in  Belgium,  France, 
the  United  States,  and  elsewhere,  were  in  this  case  sub- 
jected to  a  loss  of  about  25,000/.,  all  of  which  they  had 
to  pay,  solely  through  a  crime  committed  in  order  that 
the  owner  and  his  accomplices  might  make  some  dishonest 
profit  out  of  the  insurances  effected  by  them  on  the  ship, 
the  freight,  and  advances. 

K. 

This  colonial  vessel  was  lost  by  a  master  who  had  only 
been  put  into  her  when  on  a  voyage  to  a  neighbouring 
port  in  18G4,  and,  with  the  cargo,  totally  destroyed  shortly 
after.  Insurances  on  tlic  liiill  of  the  vessel  had  been 
effected  in  Europe  to  a  considerable  extent. 

Xo  iiKpiiry  was  made,  because,  by  colonial  regulations, 

tlie   master   was    not  obliged  to   have   a  certificate,    and 

there  was,  therefore,  no  way  of  punishing  him  for  gross 

carelessness,  if  absolute  criminality  could  not  be  clearly 

established. 

L. 

Tliis  foreign  vessel  sailed  from  South  America  in  18G4, 
bound  for  a  Chamiel  port,  for  orders;  and  after  putting 
into  one  of  the  Jkazilian  ports  to  repair  damages,  pro- 
ceeded on  her  voyage.  Some  months  later  she  was 
abandoned  in  tlie  vicinity  of  the  Cornish  coast,  and  sliortly 
afterwai'ds  drove  ashore  near  the  Land's  End,  wherel)y 
slii[)  and  cargo  were  totally  lost. 


AVILFUL    I)i;STIIUCTI()N    OF    TROPERTY    AT   SEA.         iU3 

The  wliole  of  tlie  crew  signed  declarations  to  the  elTbct 
that  the  vessel  was  improperly  abandoned  by  the  master 
and  his  brother  the  mate,  who  appeared  to  be  joint-owners  ; 
the  sufferers  by  the  loss  of  the  cargo  were,  in  this  instance, 
British  underwriters,  who  were  prevented  from  lending 
their  assistance  to  l)ri]ii:  the  guilty  parties  to  justice  in 
this  country  by  their  experience  of  the  difficulty  of  ob- 
taining a  conviction,  and  the  enormous  expense  and 
trouble  with  which  it  would  be  attended.  The  only 
course  remaining  was  to  endeavour,  with  the  aid  of  detec- 
tives, to  persuade  the  criminals  to  proceed  to  their  own 
country ;  but,  of  course,  the  proprietors  and  underwriters 
of  cargo  suffered  the  loss  of  the  wliole  of  their  interest. 

M. 

This  foreign  vessel  sailed  from  a  Belgian  port  for  the 
West  Indies,  in  1864 ;  and  was  shortly  afterwards  aban- 
doned by  the  crew  and  reported  by  them  as  having 
foundered.  She  was,  however,  picked  up  by  a  steamer 
and  taken  into  a  British  port,  when  it  was  ascertained 
that  attempts  had  been  made  to  knock  out  the  bow-port, 
which,  being  unsuccessful,  three  auger-holes  had  been 
bored  in  the  bows  of  the  vessel,  which  would,  in  a  very 
short  time,  have  insured  her  destruction. 

N, 

The  facts  of  this  case  are  so  notorious,  and  the  case 
itself  of  so  recent  date,  that  it  will  be  sufficient  briefly 
to  state  how,  at  the  Central  Criminal  Court  Session  of 
February  1867,  it  was  proved  that  this  ship,  bearing  the 
British  flag,  and  ostensibly  proceeding  on  a  voyage  from 
Newport  to  Shanghai,  was  purchased,  insured,  and  de- 
spatched with  the  manifest  intention  that  she  should  be  lost 


GU  MAIUTIME    LEGISLATIOX. 

on  the  voyage,  and  the  underwriters  thereby  defrauded. 
Four  of  the  parties  iraphcated  having  been  sentenced  to 
twenty,  ten,  and  five  years'  penal  servitude,  it  M^as  shown 
in  Court  tliat  other  vessels  in  which  they  were  interested 
had  been  made  away  with  in  a  similar  manner,  and  it  is 
to  be  hoped  that  a  most  dangerous  gang  has  thus  been 
broken  up. 

The  whole  of  the  evidence  given,  and  the  nature  of 
the  proceedings,  may  be  seen  from  a  printed  report  issued 
1)y  Lloyd's  Salvage  Association. 

The  prosecution  and  conviction  of  the  four  parties 
above  referred  to  cost  the  underwriters  more  than  7,000/. 

0. 

This  vessel,  under  a  foreign  flag,  sailed  from  a  Belgian 
port  for  South  America.  Within  view  of  the  British 
coast  the  master  made  a  deliberate  attempt  to  sink  the 
vessel,  which  was  prevented  by  the  timely  appearance  of 
a  pilot-boat  with  several  persons  on  board.  The  master 
confessed  that  what  he  had  done  had  been  instigated  by 
tlie  owner,  and  the  facts  were  clearly  proved  b}^  the 
evidence  of  the  crew.  Tlie  parties  who  would  have 
suffered  by  the  loss  of  ship  and  cargo,  and  who  will  now 
liave  to  bear  the  very  heavy  expenses  of  salvage,  &c., 
are  resident  on  llie  Continent  and  in  South  America. 
In  spite  of  all  tliis  it  was  impossible  to  take  any  steps 
in  this  country,  and  when,  with  the  help  of  a  detective 
specially  employed  for  the  purpose,  the  master  had  Ijecn 
induced  to  proceed  to  his  native  countr}^  he  could  there 
be  criminally  ])roceeded  against  oidy  because  he  had 
])liiiid('ic(l  I  lie  cai'i^'o. 

P. 

This   \v;is  a  vessel    of    l'.>4    Ions    register,   niidc]'    the 
coniiiiaiid     <»r     a      Iiiili^li      '•.•qjiaiii.     wliidi     sailed     fi'oni 


WILFUL    DESTItUCTION    OF    PROPERTY   AT   SEA,  C45 

Bangkok  on  Augu.st  13,  18G0,  bound  for  Hongkong, 
with  a  cargo  principally  shipped  by  one  merchant  of 
the  former  place.  Having  been  lost  in  fine  weather  on 
the  24th  of  the  same  month,  suspicions  were  aroused, 
which  led  to  the  holding  of  a  Naval  Court  to  inquire  into 
the  circumstances.  The  result  of  the  inquiry  was,  that 
both  captain  and  mate  were  arrested,  and  subsequently 
the  above  alluded  to  principal  shipper  was  also  arrested, 
and  the  tliree  were  tried  at  Singapore  at  the  January 
sessions  in  the  present  year.  It  was  ascertained  that 
insurances  to  the  extent  of  19,000/.  liad  been  effected 
upon  property  valued  at  not  more  than  8,500/.;  and  it 
was  conclusively  shown  that  the  captain  and  mate  had 
made  away  with  the  vessel  at  the  instigation  of  the 
principal  shipper,  in  order  to  obtain  the  advantage  of 
their  fraudulent  assurances.  The  result  was,  that  the  mer- 
chant and  the  master  were  sentenced  to  penal  servitude 
for  life,  and  the  mate  to  penal  servitude  for  five  years. 


As  all  principles  of  insurance  show  distinctly  that  the 
underwriter  calculates  his  premium  only  on  what  is 
called  '  the  common  or  ordinary  maritime  risk,'  any  act 
intentionally  augmenting  such  risk,  is  per  se  not  only 
entirely  against  good  faith,  but  actually  destroys  the 
basis  upon  which  underwriting  proceeds ;  and  it  can 
only  be  regretted  that,  although  so  many  malpractices 
of  this  description  have,  during  the  last  six  years,  been 
successfully  carried  out,  it  has  in  very  rare  instances 
been  possible  to  bring  the  offenders  to  the  fate  which 
they  so  well  deserve. 

The  details  above  given  will  show  conclusively  that 
the  main  obstacle  to  taking  efficient  action  against  this 
class  of  criminals  is  the  dilliculty  of  bringing  them  before 


04tj  MARITIME    LEGISLATION. 

the  proper  jurisdiction.  This  evil  is  aggravated  by  the 
fact  that  the  same  opportunities  which  exist  for  the 
offenders  to  keep  out  of  the  way  equally  facilitate  the 
removal  of  the  witnesses  necessary  for  the  prosecu- 
tion. 

What  is  wanted  is,  that  in  case  of  any  wilful  destruc- 
tion of  ships  or  their  cargoes,  or  other  crimes  against 
property  on  the  high  seas,  the  suspected  persons  may  be 
brought  before  the  tribunals  of  the  first  place  where  they 
can  be  found,  and  a  proper  investigation  thereby  rendered 
possible  before  the  crew  or  the  passengers,  who  probably 
are  the  only  persons  able,  by  their  knowledge  of  the  cir- 
cumstances under  which  the  crime  was  committed,  to 
give  conclusive  evidence,  have  dispersed,  and  the  possi- 
bility of  procuring  the  necessary  proofs  has  thereby 
vanished. 

For  these  reasons,  amongst  others,  it  is  necessary,  in 
my  opinion,  to  class  such  robberies  and  felonies  on  the 
liigli  seas  not  merely  with  crimes  which  Wheaton  states 
to  be  amenable  as  piracy  under  municipal  law,  but  to 
constitute  them  piracy  under  the  conventional  law  of 
nations,  and  I  propose  nothing  less  than  a  declaration — 

'  That  any  one  causing  to  be  effected,  or  aiding 
and  abetting  in  effecting,  fictitious  insurances,  as 
well  as  any  one  causing  to  be  destroyed,  or  aiding 
and  abetting  in  destroying,  shipping  property,  or  the 
merchandise  laden  on  board,  or  any  one  causing  to 
be  effected,  or  aiding  and  abetting  in  effecting,  any 
insurances  on  any  article  knowing  the  same  not  to 
be  on  board,  or  on  vessels,  or  their  cargoes,  or 
the  freight,  or  advances,  knowing  the  vessels  to  be 
intended  to  be  cast  away  or  destroyed  at  sea,  is 
to   be  (lc('ni((l   and  taken   to  Ix'  a   pii'al<',  and   to  l)e 


WILFUL   DESTliUCTION    OF    PROPERTY   AT   SEA.         047 

justiciable  as  sucli  by  the  tribunals  of  all  niaritime 
nations.' 
Judging  from  the  facility  witli  which  the  laws  regu- 
lating the  rule  of  the  road  at  sea,  &c.,  have  been  univer- 
sally adopted,  I  have  no  doubt,  if  the  initiative  in  this 
important  matter  were  taken  by  Her  Majesty's  Govern- 
ment, that  all  maritime  states  would  be  glad  to  join  in 
the  adoption  of  an  international  declaration,  which  would 
be  more  likely  than  anything  else  to  prevent  this  enor- 
mous destruction  of  property,  by  bringing  to  speedy 
punishment  a  class  of  malefactors  enjoying  hitherto  com- 
parative impunity. 

16  Fenchurch  Buildings,  London  : 
September  lbG7. 

The  expectations  I  had,  that  Her  Majesty's  Government 
would  consider  it  in  the  interest  of  maritime  commerce  to 
move  in  the  directions  I  suggested  not  having  been 
reahsed,  I  think  it  my  duty  to  assert,  that  the  experience 
I  have  gained,  since  the  above  memorandum  was  pre- 
sented, has,  if  anything,  strengthened  my  opinion  as  to  the 
advisability  of  making  serious  offences  against  shippinf^- 
property  punishable  as  crimes  under  International  Law. 

To  show  that  at  least  one  well-known  authority  on 
International  Law  has  considered  my  suggestion  well 
worth  consideration,  I  quote  tlie  following  sentences 
which  appeared  in  the  second  edition  of  the  late  Sir  Eobert 
Phillimore's  '  Commentaries  on  International  Law,'  vol.  iv. 
p.  775  :  — 

At  present  there  is  a  practical  impunity  accorded  to  savage  and 
brutal  men,  which  encourages  them  in  tlie  commission  of  acts  of 
cruelty  upon  the  high  seas  at  which  human  nature  sluidders  •  and 
the  true  end  of  International  Law,  the  wt-liare  and  safety  of  indi- 
viduals as  members  of  States,  is  sacriliced  lo  an  over-scrupulous 


(348  MARITIME   LEGISLATION. 

respect  for  a  general  principle  which  has  ceased  in  this  particular 
instance  to  be  a  means  of  maintaining  that  end. 

A  similar  remark  applies  to  the  fraudulent  destruction  or  cast- 
ing away  of  vessels  and  cargoes,  a  crime  which  unhappily  often 
escapes  punishment  because  the  country  to  which  the  ship  is  bound 
or  to  which  the  offenders  come  is  not  that  to  which  the  ship 
belono-s,  and  its  courts  have  therefore  no  jurisdiction.  It  has  been 
proposed,  in  order  to  meet  this  evil,  to  make  these  crimes,  by  the 
general  consent  of  nations,  acts  of  piracy  and  justiciable  every- 
where (cide  Wendt's  '  Maritime  Legislation,'  2nd  ed.  p.  148), 

Having  referred  to  this  opinion,  which  was  expressed 
as  far  back  as  1874,  it  becomes  now  my  duty  to  mention 
a  case  occurring. in  the  following  year,  which,  it  might  be 
thought,  would  have  aroused  public  opinion  to  such  an 
extent  as  to  have  compelled  the  adoption  of  my  sugges- 
tion. 

On  December  11,  1875,  the  Xorth  German  Lloyd 
steamer  '  Mosel '  was  lying  at  the  quay  at  Bremerhaven 
ready  to  be  despatched  in  a  few  hours  via  Southampton  for 
New  York,  when,  in  consequence  of  the  fall  of  a  box 
which  slipped  out  of  the  carrier's  hands,  an  explosion 
occurred,  whicli,  besides  causing  the  destruction  of  pro- 
perty to  an  enormous  amount,  killed  five  passengers  and 
four  members  of  the  crew  of  the  '  Mosel,'  as  well  as 
seventy-six  persons  who  happened  to  be  in  the  neighbour- 
hood, a  very  large  numl)er  more  being  dangerously 
wounded. 

Shortly  after  the  explosion  liad  taken  place,  the  sound 
oi'  a  sliot  was  heard  coming  from  one  of  the  j^rivate  cabins 
of  the  '  Mosel.'  It  was  found  that  a  passenger  called 
William  King  Thomas,  but  whose  real  name  proved  to  be 
Alexander  Keith,  had  unsuccessful!}'  attempted  to  destroy 
liiiiiself.  He  succumbed  eventually,  but  lived  long  enough 
to  coiii'css  to  one  of  tlic  most    (li;ibolical   crimes  ever  com- 


WILFUL  DESTRUCTION  OF  PROPERTY  AT  SEA.    G49 

mitted.  The  box,  which  was  filled  with  dynamite,  with  a 
clockwork  arrangement  for  exploding  it,  belonged  to  the 
miscreant,  who  had  intended  to  ship  it  on  the  '  Mosel,' 
and  had  i)lanned  that  it  should  explode  during  the  voyage, 
when  it  must  have  utterly  destroyed  the  vessel  and  all  on 
board.  Further  particulars  were  brought  to  light  at  the 
investigations  subsequently  set  on  foot.  It  appeared  that 
Keith  had  obtained  a  clockwork  machine  from  a  small 
watchmaker  in  the  interior  of  Germany,  who  had  been 
made  to  believe  that  the  mechanism  he  was  ordered  to 
make  was  intended  for  use  in  a  factory.  The  in- 
strument was  so  contrived  that  it  would  2:0  for  a  certain 
time  and  then  set  free  a  hammer,  and  it  was  so  fixed 
by  Keith  in  the  chest  that  the  hammer  on  being  freed 
would  explode  the  contents  of  the  chest.  The  dynamite, 
according  to  the  report  of  Iler  Majesty's  inspector  of 
explosives  for  the  year  1875,  was  sufficient  to  cause  damage 
to  houses  750  yards  away. 

From  circumstances  coming  to  light  at  the  time  it  was 
surmised  that  the  miscreant  intended  to  leave  the  '  Mosel ' 
at  Southampton,  and  cause  extensive  insurances  to  be 
effected  on  property  declared  to  be  either  already  on  board 
or  to  be  shipped  at  that  port,  when  he  would  have  obtained 
a  very  large  profit  by  the  destruction  of  that  vessel. 

Now  let  us  suppose  that  the  miscreant's  intentions  had 
partly,  but  not  entirely,  succeeded,  and  that  the  '  Mosel ' 
had  been  damaged  only  after  leaving  Southampton,  and 
sufficient  proof  of  the  diabolical  crime  had  been  forth- 
coming. 

Under  what  jurisdiction  could  Keith  have  been  in- 
dicted in  the  present  state  of  the  law  if  he  had  got  away 
and  been  found,  say,  in  Norway  ? 

I  must  entirely  concur  with  Professor  von  Ilolzendorlf 
of  Munich,  who  in  his  '  Observations  on  the  liremerhaven 


GoO  MARITIME   LKGISLATIUN. 

Explosion'  {vide  'Deutsche  Eundscliau,'  II.  G,  p.  402) 
expressed  the  opinion  that  in  the  present  state  of  the  law 
upon  these  subjects  Keith  would  have  escaped  punishment 
altogether. 

Before  I  conclude  this  chapter  I  will  quote  some 
remarks  uj)on  my  proposals  from  a  paper  prepared  by 
Dr.  H.  von  Spesshardt,  of  Marburg,  on  s.  2G5  of  the 
German  Criminal  Law,  which  apparently  is  the  only  one 
treatinsf  of  crimes  such  as  are  now  under  consideration. 

This  section  is  as  follows  : — 

Whoever,  with  criminal  intent,  sets  fire  to  an  object  insured 
against  fire,  or  causes  a  vessel,  wliicli,  or  its  cargo  or  freight  is 
so  insured,  to  sink  or  strand,  is  subject  to  penal  servitude  up  to 
ten  years,  and  at  the  same  time  liable  to  a  fine  of  from  a  hundred 
and  fifty  to  six  thousand  marks.  In  case  of  extenuating  circum- 
stances, imprisonment  for  not  less  than  six  mouths,  besides  a  fine 
not  exceeding  three  thousand  marks,  may  be  inflicted. 

The  observations  of  Dr.  von  Spesshardt  run  thus  : — 

Although  it  may  appear,  from  the  considerations  hitherto 
entertained,  as  if  the  penal  conditions  of  s.  2G5  entirely  fulfilled  the 
j)ractical  requirements  of  maritime  intercourse,  still  one  circumstance 
has  not  yet  been  mentioned,  which  puts  upon  the  crime  of  marine 
insurance  fraud  quite  a  special  mark  of  danger.  Marine  insurance 
fraud  is  a  crime  of  essentially  international  importance.  The 
crijue  of  one  not  only  a  Sects  the  nation  to  which  he  belongs,  but 
the  criminal  attack  is  moreover  directed  against  the  property  of 
subjects  of  various  states.  They  all  have  a  lively  interest  in  prose- 
cuting the  criminal.  To  this  must  be  added  that  the  scene  of  the 
crime  is  the  high  sea  or  some  foreign  territorial  water,  on  account 
of  which  the  capture  of  the  criminal  is  very  ditficult  and  at  times 
even  legally  as  well  as  actually  quite  impossible.  Owing  to  this 
personal  interest  which  all  maritime  nations  have  in  prosecuting 
maritime  fraud  energetically,  it  certainly  appears  justifiable  to 
a])|ily  international  measures  to  combat  the  same. 

hi  I  his  sense  E.  E,  Wendt  made,  in  a  memorial  submitted  to 


WILFUL   DESTRUCTION   OF   PUOrEKTY    AT   SI'.A.         051 

the  English  Govenirnent,  the  noteworthy  proposal  to  treat,  Ly 
agi'eemeiit  of  the  seafaring  nations,  maritime  fraud,  the  destruction 
of  insured  vessels,  as  well  as  other  frauds  committed  against 
insurance  cuuipanies,  as  piracy  and  to  allow  its  punishment  to 
each  of  the  contracting  states. 

If  our  German  penal  code  were  altered  in  accordance  with  this 
principle,  and  the  one-sided  national  and  territorial  principle  were 
made  less  prominent,  it  cannot  be  denied  that  a  most  important 
improvement  would  be  effected. 

It  is  a  question  if  and  how  an  insurance  fraud,  committed  by 
a  foreigner  against  German  property,  whether  the  property  belongs 
to  Germans  or  is  insured  in  Germany,  can  be  looked  upon  as  a 
crime  in  accordance  with  the  conditions  of  the  penal  code.  Crimes 
committed  on  the  high  seas  by  foreigners  on  board  of  German 
vessels,  irrespective  of  the  fact  whether  they  are  merchant  vessels 
or  men-of-war,  can  undoubtedly  be  prosecuted  criminally  on  the 
part  of  Germany.  According  to  generally  recognised  international 
principles,  vessels  on  the  high  seas  are,  by  means  of  legal  fiction, 
looked  upon  as  part  of  the  state  under  whose  flag  they  sail  :  this 
applies  in  the  same  manner  to  both  men-of-war  and  merchant 
vessels.  It  is  otherwise,  however,  if,  for  example,  a  Frenchman 
.commits  a  crime  on  board  of  a  German  vessel  within  English 
territorial  waters ;  in  this  case,  the  state  in  whose  waters  the  deed 
was  committed  may,  wath  justice,  claim  the  execution  of  its 
territorial  authority :  only  men-of-war,  it  is  agreed,  are  to  be 
excluded,  and  are  subject  to  the  law  of  the  Home  State,  even  in 
foreign  territorial  waters.  In  the  example  given,  the  criminal 
Frenchman  might  be  prosecuted  on  the  part  of  Germany,  if  the 
German  vessel  is  a  man-of-war,  and  on  the  part  of  the  English 
authority,  if  it  is  a  German  merchant  vessel  ;  and  the  same  would 
apply  to  most  states,  as  the  territorial  principle  has  been  generally 
introduced  in  the  penal  code. 

On  the  other  hand,  if  a  crime  is  committed  by  a  foreigner 
abroad,  although  against  German  property,  our  code  is  powerless, 
as,  for  example,  if  an  Englishman  destroys,  on  the  high  seas,  a 
Spanish  vessel  laden  with  German  property  or  insured  with  a 
German   insurance  company.     According  to    our   penal  code,  no 


662  MARITIME    LEGISLATION. 

crime  which  c&n  be  prosecuted  on  the  part  of  Germany  exists, 
although  Germany  has  a  great  interest  in  capturing  the  criminal. 
The  states  have,  therefore,  to  look  to  international  legal  assistance, 
to  extradition  treaties;  but  to  whom  shall  the  criminal  be  sur- 
rendered, who  in  the  meantime  has  gone  to  America  ?  In  this 
instance  the  states  interested  are  England,  the  criminal  being  a 
subject  thereof,  Spain,  on  whose  territory  the  crime  was  committed, 
and  Germany,  which,  if  the  vessel  is  again  floated  and  only  the 
cargo  is  lost,  would  probably  suffer  the  most.  But  even  if  America 
surrendered  to  England,  no  punishment  might  possibly  be  inflicted, 
as  England  only  punishes  its  subjects  for  certain  crimes  committed 
abroad.  Extradition  treaties  effected  between  the  separate  states 
would,  therefore,  in  view  of  the  doubt  arising  as  to  which  state 
should  prosecute  the  criminal,  not  give  suitable  assistance.  It 
should  therefore  be  acknowledged  that  under  the  circumstances  an 
international  crime  exists,  for  the  suppression  of  which  all  states 
should  cordially  unite.  In  such  cases  the  principle  of  nationality 
must  be  put  aside,  and  each  state  have  the  right  to  put  its  hand 
upon  the  criminal.  Certain  success  will  only  then  be  assured,  if 
the  arm  of  justice  awaits  the  criminal  wherever  he  goes. 

Although  we,  therefore,  perfectly  agree  with  Wendt's  jjroposal 
in  principle,  we  should  wish  it  limited  to  maritime  fraud  in  its 
technical  name.  To  fictitious  insurances,  however,  or  to  insurances 
of  cargo  not  in  existence,  which  actions  are  not  even  a  completed 
fraud  against  the  underwriter,  cannot,  per  se,  without  the  introduc- 
tion of  any  forcible  measures,  be  attributed  such  importance  which 
would  justify  the  application  of  the,  at  any  rate,  drastic  principle. 

There  remains  only  one  observation  for  nie  to  make 
uii  the  latter  part  of  these  remarks,  in  which  Dr.  von 
^pessliardt  questions  whether  the  conclusion  of  fictitious 
insurances  ought  to  be  placed  in  the  same  category  as  the 
other  crimes  to  which  I  have  here  referred. 

Now  it  appears  to  me  that  the  conclusion  of  a 
fictitious  insurance  is  an  attempt  to  defraud,  a  conspiracy 
to  obtain  inoiiey  under  ialse  pretences,  and  therefore 
ou;_flit    ('(pi.illy    with    all    other   crimes    perfected   on  the 


WILFUL   DESTRUCTION    OF   PROPERTY   AT   SEA.         G53 

high  seas,  to  be  punisliable  as  piracy  under  the  hiw  of 
nations. 

But  before  I  conckide  this  chapter  I  must  not  omit  to 
state  a  most  gLiring  case  of  piracy  which  was  perpetrated 
between  October  1880  and  April  1881,  which  led  to  judicial 
investigations.  These  are  here  reported  with  the  names 
of  the  parties  imphcated  in  these  partly  successful  frauds. 

The  steam-vessel  'Ferret,'  belonging  to  the  Highland 
Eailway  Company,  was  chartered  in  the  year  1880  by 
James  Stewart  Henderson.  The  steamer  proceeded  in  the 
first  instance  to  Cardiff,  there  loading  a  cargo  of  coals  for 
Marseilles,  and  in  due  course  passed  the  Eock  of  Giljraltar, 
where  her  name  was  signalled.  During  the  night  she  re- 
turned to  the  Atlantic,  at  which  time  a  boat  and  life-buoys 
were  thrown  overboard.  She  next  put  into  San  Antonio, 
Cape  de  Verde,  under  the  name  of  '  Bentan,'  from  which 
place  she  proceeded  to  Santos,  where  she  was  chartered 
for  conveyance  of  a  cargo  of  coffee,  which  was  laden  on 
board  for  delivery  at  Marseilles  and  Genoa.  The  vessel 
having  cleared  from  Santos,  next  appeared  under  the  name 
of  '  India '  at  Cape  Town,  at  which  place  Henderson  sold 
the  cargo  and  appropriated  the  proceeds  to  his  own  use, 
having  during  the  voyage,  or  previously,  forged  the  various 
documents  in  order  to  show  that  the  coffee  had  been 
purchased  for  his  account.  From  Cape  Town  he  sailed 
with  the  proceeds  in  his  possession  for  the  Mauritius, 
where  he  discounted  one  of  the  drafts  for  500/.,  sailing 
thence  for  Melbourne,  at  which  place  the  vessel  was  seized 
and  Henderson  and  Wright,  the  sailing  master,  were  taken 
into  custody,  and  subsequently  tried  and  convicted  for  an 
attempt  to  defraud  the  various  parties  interested.  The 
drafts,  amounting  to  7,500/.,  then  in  the  possession  of 
Henderson,  were  attached,  but  in  order  to  recover  the 
proceeds   of    said    drafts,    proceedings    in    this    country, 


654  MAIUTIME    LEGISLATION. 

against  tlie  Standard  Bank  of  British  Soutli  Africa  and 
others,  were  requisite,  some  of  the  drafts  having  been  sent 
forward  for  encashment  b}^  the  Sheriff  of  Mel])ourne. 

These  proceedings  did  not  terminate  until  1884,  and 
were  of  a  very  compHcated  and  expensive  nature. 

I  liave  no  doubt  tliat  one  of  the  reasons  why  the  Law 
Officers  of  the  Crown  did  not  tliink  it  worth  their  while  to 
trouble  themselves  with  the  consideration  of  my  suggestions 
under  this  head  was  that,  in  this  age  of  telegraphic  com- 
munications over  the  whole  civilised  world,  the  frauds 
I  reported  could  scarcely  be  carried  out  to  any  large 
extent. 

But  I  imagine  that  the  two  cases  I  reported  since 
18G7  (and  which  might  have  been  amplified  if  I  had 
thought  it  necessary)  are  sufficient  to  prove  that,  in  spite 
of  the  facility  to  communicate  by  cable  with  all  parts  of 
the  world,  such  frauds  are  not  only  contemplated  but 
carried  out  with  a  degree  of  effrontery  which  has  rarely 
been  exceeded. 

Let  it  not  be  forgotten  that  within  the  short  space  of 
about  seven  months  the  criminal  acts  perpetrated  by  these 
scoundrels  would  nuiiibcr  more  than  a  dozen,  and  that 
thev  escaped  wiili  punishments  of  seven  years  and  three 
years  and  a  half  penal  servitude  respectively,  which  would 
not  have  been  the  case  if  the  trial  had  taken  })lace  in  this 
country. 

And  the  best  proof  that  (he  parties  convicted  are  not 
the  only  ones  who  were  implicated  in  these  scandalous 
proceedings  was  given  by  the  Telegrai)hic  Code  found 
on  board  the  'Ferret'  at  Mell)()iirne ;  so  that  we  need 
not  be  surprised  if  conspiracies  of  a  similar  nature  are 
attempted  after  the  public  has  forgotten  the  lesson  in 
<|uestion. 


IX. 

MERCHANT  SHIPS'   LOGS,  PROTESTS  AND  DE- 
POSITIONS BEFORE  RECEIVERS. 

Everybody  connected  with  maritime  commerce  in  any 
shape  or  way  must  agree  with  me  that  the  above-named 
subjects  are  of  the  most  vital  importance  to  those  wlio  have 
a  bojid  fide  interest  in  any  maritime  adventure,  whetlier  as 
the  owners  of  ship  or  cargo,  as  the  underwriters,  or  as 
the  bankers  who  have  made  advances  on  the  security  of 
ship,  cargo,  or  freight. 

The  laws  of  almost  all  maritime  nations  have  indeed 
from  time  immemorial  very  rightly  contained  strinijent 
enactments  as  to  how  during  the  navigation  of  a  vessel 
the  circumstances  of  daily  occurrence  on  board  must  be 
recorded,  and  in  what  manner,  after  the  termination  of  a 
voyage,  and  before  the  crew  is  dispersed,  the  necessary 
steps  are  to  be  taken  to  obtain  their  evidence  as  to  the 
correctness  of  such  records. 

In  this  country,  where  undoubtedly  the  largest  interests 
of  maritime  commerce  centre,  a  state  of  things  has  arisen 
which  for  its  anomaly  is  unprecedented.  This  lias  been 
often  acknowledged,  but  the  various  attempts  to  rectifv 
the  law  as  described  in  the  following  j)ages  have  been 
entirely  unsuccessful. 

As  far  back  as  February  4,  18G4,  the  London  Salvaire 
Association  and  the  representatives  of  the  principal  foreitrn 
underwriters  addressed  the  following  conuniuiication  : 


656  MARITIME    LEGISLATION. 

To  the  Lords  of  the  Committee  of  rriry  Council  for  Trade. 

My  Lords, — We,  the  undersigned,  being  entrusted  with  the 
protection  of  important  mercantile  and  underwriting  interests,  both 
Britisli  and  foreign,  and  being  continually  called  upon  to  inquire 
into  the  causes  and  particulars  of  casualties  occurring  in  all  parts 
of  the  coasts  of  the  United  Kingdom,  have,  since  the  passing  of 
the  Merchant  Shipping  Act  of  1854,  been  brought  into  constant 
contact  with  the  Receivers  appointed  by  your  Committee,  and  have 
carefullv  watched  the  working  of  the  regulations  laid  down  by  the 
said  Act ;  and  we  now  beg  leave  to  lay  before  your  Lordships  the 
expression  of  our  opinion  that,  although  the  eighth  part  of  the  Act 
makes  provision  for  inquiries  and  examinations  in  cases  of  wreck 
and  casualty,  the  objects  contemplated  thereby  are  not  fully  at- 
tained, and  the  clauses  in  question  are,  therefore,  susceptible  of 
improvement.  By  this  eighth  part  of  the  Merchant  Shipping  Act 
of  1854,  Receivers  of  Wreck  are  empowered  to  institute  examina- 
tions with  respect  to  ships  in  distress,  such  examinations  to  be  held 
as  soon  as  conveniently  may  be,  and  two  copies  of  such  examina- 
tion to  be  taken,  one  to  be  transmitted  to  the  Board  of  Trade  and 
the  other  to  be  exhibited  by  the  Committee  for  managing  the 
affairs  of  Lloyd's  to  persons  desirous  of  examining  the  same. 
This  enactment,  therefore,  would  seem  to  contemplate  the  bringing, 
witliin  a  very  short  period,  the  facts  connected  with  every  casualty 
under  the  notice  both  of  the  Board  of  Trade  and  of  the  parties 
interested. 

Tliis  very  desirable  result  is,  however,  at  present  not  arrived  at. 
The  Act  which  gives  power  to  the  Receiver  to  take  a  deposition 
names  no  penalty  in  the  event  of  the  master  or  other  of  the  crew 
of  a  ship  in  distress  refusing  or  neglecting  to  make  one,  and  the 
phrase  *  as  soon  as  conveniently  may  be  '  is  almost  invariably 
stretched  out  to  such  a  time  as  the  master  has  settled  all  his  other 
affairs  when  his  deposition,  if  made  at  all,  becomes  simply  an  echo 
of  the  protest  wliicli  lie  is  obliged  to  make  in  order  tochiim  against 
his  underwritci's.  I  ndccd,  sf)  far  is  the  great  importance  of  these  de- 
positions lost  siglii  of,  I'Vfii  by  the  Receivers  of  Wreck  themselves, 
tli;it    thry  l;a\e  biiii    kiiM.vii    lo    (ell    iirist'TS  of  ships   who  wished 


MERCHANT   SHIPS'   LOGS    AND   PROTESTS.  657 

to  make  their  depositions,  after  the  total  loss  of  their  vessel,  that 
they  need  not  be  in  a  hurry  about  that,  for  it  would  do  just  as  well 
when  they  got  home.  By  this  course  the  clauses  of  the  Act  are 
rendered  nugatory,  and  what  was  intended  to  be  a  clear  and  succinct 
narrative  from  the  scene  of  the  casualty  becomes  comparatively 
useless. 

But  when  it  is  considered  that  cases  may  occur  where  frauds 
may  be  attempted,  then  the  necessity  for  ensuring  the  taking 
of  depositions  before  the  parties  leave  the  spot  becomes  evident. 
For  it  cannot  be  doubted  that  the  occurrence  of  a  fraud  is  frequently 
known  to  men  who,  if  questioned  at  once,  would  gladly  tell  the 
whole  truth,  but  when  once  allowed  to  leave  they  are  content  to 
remain  silent ;  or  if  likely  to  prove  disagreeable  witnesses,  every 
opportunity  is  given  for  their  being  sent  out  of  the  way,  so  that 
before  the  parties  who  are  ultimately  to  suffer  can  transmit  their 
instructions  the  best  opportunity  of  defeating  any  irregularity 
is  lost. 

As  the  Customs  Consolidation  Act  orders  that  every  ship  arriving 
in  the  United  Kingdom  shall,  within  twenty-four  hours  after  arrival, 
be  rejDorted  at  the  Custom  House,  or  that  the  master  shall  incur  a 
penalty  for  neglecting  so  to  report,  in  like  manner  we  think  that 
the  public  interest  requires  that  every  master  of  any  ship,  whether 
British  or  Foreign,  which  either  suffers  or  inflicts  damage,  shall, 
within  twenty-four  hours  after  the  occurrence  of  the  damage 
(except  where  the  same  may  happen  at  sea,  in  which  case  within 
twenty-four  hours  after  arrival  in  the  first  port  in  the  United 
Kingdom),  report  himself  to  the  Receiver  of  Wreck,  and  there 
make  on  oath  a  deposition  in  the  same  form  as  it  is  made  at  pre- 
sent, or  in  default  of  so  doing  shall  be  liable  to  such  penalty  as 
your  Committee  may  think  fit  to  impose.  Further,  that  in  every 
case  of  stranding  or  total  loss  the  deposition  of  every  one  of  the 
crew  shall  be  separately  taken  in  the  same  manner  as  that  of  the 
master.  We  have  further  to  suggest  that  a  distinct  enactment 
be  made  with  respect  to  the  services  of  an  interpreter  in  cases 
where  the  master  of  a  foreign  vessel  can  speak  no  language 
in  which  he  can  make  himself  understood  by  the  Receiver,  for 
the    difficulty  of  communication    in  such  cases    often  causes  the 

u  u 


658  MARITIME   LEGISLATION. 

Receiver  to  omit  altogether  tlio  taking  of  a  deposition,  and  we 
cannot  think  that  the  laws  of  this  country  should  be  allowed  to 
fail  in  theii"  effect  because  the  Consuls  and  Vice-Consuls  of  foreig-n 
Powers  are  so  frequently  utterly  indifferent  to  the  necessity  of  pro- 
vidino-  for  such  communication.  By  these  means,  and  by  impressing 
upon  the  Receivers  the  necessity  of  the  most  rigid  canying  out  of 
the  reo-ulations  in  this  respect,  we  believe  that  so  complete  a  record 
of  all  casualties  may  be  obtained  as  will  go  far  to  check  dishonest 
and  fraudulent  practices,  which  we  are  afraid  are  still  of  too  frequent 
occurrence. 

We  therefore  pray  your  Lordships  to  recommend  that  the 
Merchant  Shipping  Act,  at  as  early  a  period  as  possible,  be 
amended  by  the  insertion  of  clauses  to  the  above  effect. 

Tills  subject  was  on  several  occasions  Ijronglit  before 
the  Board  of  Trade,' as  will  be  seen  by  a  return  of  the  copies 
of  letters  and  correspondence  issued  on  May  15, 1876,  and 
laid  before  the  House  of  Commons.  The  letters  were  from 
the  Secretary  of  Lloyd's,  the  Secretary  of  the  Liverpool 
Underwriters'  Association,  the  Wreck  Commissioner,  the 
Secretary  to  tlie  London  and  Provincial  Marine  Insurance 
Company,  the  Secretary  of  the  Salvage  Association,  Messrs. 
Waltons,  Bubb,  and  Walton,  Messrs.  HoUams,  Son,  and 
Coward,  and  myself,  and  in  them  particulars  of  numerous 
and  very  distinct  instances  of  irregularities  and  even  frauds 
perpetrated  under  the  present  system  were  made  known  to 
the  Board  of  Trade,  but  nothing  to  remedy  such  a  state  oi 
affairs  has  been  done. 

A  very  glaring  case  which  occurred  within  my  own 
knowledge  induced  me  to  issue  in  October  1878  the 
following  memorandum : — 

Merchant   Snu's'   Pkotests. 

Tlif  prosi'cutinii  lalcly  concluded  at  Cork  of  'The  Queen  v. 
Minifli '  lias  again  ])roiiglit    ]»r<)niincnl  ly    r(.i-\\;ii-(l    Ihc   iii;iuy  gra\e 


MERCHANT   SHIPS'   LOGS   AND   PROTESTS.  050 

objections  there  are  to  tlie  taking  and  extending  of  Protests  as  at 
present  exercised  by  notaries  public. 

The  Extended  Protest  being  the  document  intended  to  be  used 
as  evidence  of  the  circumstances  therein  narrated  in  cases  where 
claims  are  to  be  made  by  and  against  the  owners,  underwriters, 
and  others  interested  in  ship,  cargo,  or  freight,  and  being  in  fact 
in  almost  all  countries  other  than  the  United  Kingdom  the  docu- 
ment accepted  as  conclusive  evidence  in  support  of  the  facts  on 
which  the  claims  are  made,  the  drawing  it  up  should  be  guarded 
in  the  most  scrupulous  way,  that  the  chance  be  minimised  of  its 
being  in  any  way  inaccurate,  inefficient,  or  untrue.  The  present 
system  of  preparing  the  Protest  is  open  to  many  and  serious 
objections. 

(1)  The  Protest  can  be  made  at  any  time  after  the  arrival  of 
the  ship,  thus  giving  time  and  opportunity  for  the  master  and 
owner,  or  others  interested,  to  consult  together,  and  if  they  are 
dishonestly  inclined,  to  carefully  prepare,  or  cause  to  be  prepared 
for  them  by  their  legal  advisers,  a  document  framed  specially  to 
meet  some  particular  necessity,  whether  it  be  a  claim  against  their 
nnderwriters  or  a  defence  to  an  anticipated  action  for  damage  or 
salvage. 

(2)  The  objection  to  the  manner  is  also  equally  grave.  In  the 
great  majority  of  cases  the  draught  is  sketched  out,  before  the 
matter  comes  before  the  notary,  by  someone  who,  although  possibly 
entirely  unconnected  with  the  voyage,  may  nevertheless  have  an 
interest  in  the  object  to  be  attained  by  the  Protest,  and  therefore 
not  be  unprejudiced.  It  is  then  brought  to  the  notary,  and  em- 
bodied by  him  in  formal  w^ords,  without  reference  to  the  log,  and 
without  appealing  to  or  questioning  anyone  but  the  master  ;  it  is 
then  read  over  to  and  signed  by  those  of  the  crew  presented  by 
the  master  for  that  purpose,  who,  though  they  might,  and  in  all 
probability  would,  give  a  perfectly  true  version  of  the  facts,  if 
questioned  by  the  notary,  yet  do  not  hesitate  in  their  wcll-knoMTi 
careless  manner  to  sign  what  is  presented  to  them  by  an  official, 
though  it  may  contain  incorrect  or  indeed  utterly  false  state- 
ments. 

(3)  Again,  as  to  the  person  who    prepares    the  Protest — the 


G60  MARITIME   LEGISLATION. 

notary  public.  He  is  a  private  individual,  one  of  a  large  number 
of  the  same  profession,  any  one  of  whom  may  equally  well  prepare 
anv  particular  Protest.  Now,  in  the  case  of  a  master,  who  wishes 
to  make  a  shuffling  or  untrue  Protest,  coming  to  one  of  these 
notaries  what  power  has  the  latter,  if  he  has  his  suspicions  as  to 
the  truth  of  the  tale,  to  prevent  a  Protest  being  made  in  the  terms 
desired  ?  He  may  demand  the  log-book,  he  cannot  compel  its  pro- 
duction ;  he  may  examine  those  of  the  crew  brought  to  him,  he 
cannot  require  the  appearance  of  others  not  brought ;  whether  he 
ma}'  even  swear  the  appearers  is  a  matter  of  doubt.  He  may  in- 
deed, as  a  last  resource,  refuse  to  draw  up  the  Protest,  and  the 
satisfaction  he  will  then  have  will  be  the  knowledge  that  the  result 
of  his  scrupulousness  is  that  he  has  lost  his  fee,  and  some  other 
less  acute  or  less  punctilious  notary  has  received  it  instead. 

The  result  of  this  unsatisfactory  state  of  affairs  is  that  the 
Protest  is  for  all  practical  purposes  worthless.  It  may  even  be 
said  truly  that  it  is  worse  than  worthless,  for  though  from  the  facility 
of  its  being  made  fraudulently  it  may  contain  utterly  untrue  state- 
ments, yet  it  is  in  appearance  a  formal  and  official  document ;  it  is 
attested  and  sealed  by  an  official  functionary,  and,  in  consequence, 
faith  is  placed  in  it  and  credit  given  to  it,  by  many,  especially 
abroad,  which  it  in  no  wise  deserves,  and  instead  of  being  a  pre- 
ventive o£  fraud,  it  is  actually  an  official  means  by  which  frauds  can 
the  more  readily  be  perpetrated. 

The  validity  of  the  objections  I  have  herein  put  forward  is  well 
Blio\vn  by  the  case  already  referred  to  of  '  The  Queen  v.  Minich.' 
There  a  Protest  was  extended  at  Cork  on  behalf  of  an  Italian  ship. 

The  crew  were  entirely  ignorant  of  the  English  language,  and 
an  interjireter  therefore  accompanied  them  to  the  notary,  who  was 
not  conversant  with  Italian.  The  crew  honestly  described  certain 
circumstances  in  connection  with  the  voyage — which  description 
was  perfectly  in  accordance  with  the  statement  contained  in  the 
ship's  log-book — but  the  interpreter,  for  reasons  of  his  own,  and 
for  the  fraudulent  purpose  of  enabling  an  unjust  claim  to  be  made 
a^'ainst  certain  und.'rwritors,  inserted  in  his  interpretation  an  en- 
tircly  fictitious  account  of  a  stranding  of  the  vessel,  which  was 
tli'Triipon   (Iniffed  into  tin*  Protrst,  jiiid  sworn  to  in   ignorance  l)y 


MERCHANT   SHIPS'  LOGS   AND   PROTESTS.  001 

the  crew.  The  log-book  was  neither  required  nor  produced.  Tlie 
fraud  was  detected,  but  the  greatest  difficulty  was  experienced  in 
deciding  by  whom — crew,  interpreter,  or  notary — the  fraud  had 
been  committed ;  and  even  when  the  fraud  was  fixed  on  the  in- 
terpreter, it  was  found  impossible  to  find  him  guilty  of  perjury,  as 
the  right  of  the  notary  to  swear  him  was  doubtful ;  for  although, 
with  one  exception,  all  the  notaries  in  Cork  were  shown  to  have 
taken  Protests  on  oath  from  time  immemorial,  their  authority  for 
so  doing  could  not  be  proved. 

To  remove  the  objections  above  described,  and  to  supply  an 
efficient  remedy,  is  by  no  means  an  easy  task.  Reiterated  appli- 
cations on  the  subject  to  the  Board  of  Trade  have  led  to  no  result ; 
and  the  chief  reason  for  this  may  possibly  be  tliat  no  practical  plan 
has  yet  been  devised  to  introduce  the  requisite  alterations  in 
practice,  without  disregarding  the  fact  of  the  existence  of  a  very 
large  number  of  notaries,  to  whom  the  drawing  of  ships'  Protests 
has  been  a  considerable  source  of  income,  and  who  cannot  forcibly 
be  got  rid  of.  The  folloAving  suggestions,  the  result  of  very 
lengthened  connection  with  and  very  careful  consideration  of  the 
subject,  are  offered  in  the  belief  that  they  will  effect  the  desired 
result,  Avithout  interfering  with  or  prejudicing  the  rights  of  any 
parties. 

In  the  first  place,  as  to  what  should  be  contained  in  the  Protest. 
It  should  in  all  cases  give  an  exact  and  accurate  transcript  of  so 
much  of  the  ship's  log  as  is  essential  for  its  compilation.  To  this 
should  be  added  such  observations  or  explanations  as  the  various 
signatories  may  desire  to  offer  and  as  the  compiler  may  consider 
necessary  to  insert. 

To  enable  the  notary,  for  he  may  still  be  retained  as  the  com- 
piler, to  draw  the  Protest  in  the  manner  suggested,  greater 
official  powers  must  be  given  to  him,  and  at  the  same  time 
stringent  regulations  in  the  stead  of  varying  customs  must  be 
drawn  up  to  govern  his  conduct  of  the  matter.  He  must  have 
authority,  and  moreover  it  must  clearly  be  laid  down  as  his  duty 
to  demand  the  log,  to  summon  certain  members  of  the  crew  (to 
include  at  least  the  master,  mate,  and  two  others),  to  examine 
thtm  and  all  other  intended  signatories  separately,  and,  most  im- 


662  MARITIME   LEGISLATION. 

portant  of  all,  to  administer  an  oath  to  each  signatory  and  to  the 
inteii^reters  when  any  are  required. 

In  order  that  the  log-book  may  be  of  practical  use,  the  system 
now  obtaining  in  this  country  must  be  entirely  remodelled,  the 
present  official  log-book  should  be  entirely  abolished,  and  the 
entries  therein  prescribed  should  be  made  in  the  ship's  ordinary 
log,  which  should  be  kept  with  the  same  care  as  is  at  present  ap- 
plied to  the  so-called  official  log.  The  use  of  paged  and  sealed 
log-books  should  be  made  compulsory,  the  log-book  be  written  up 
on  board  every  twenty-four  hours,  the  entry  be  daily  read  over  in 
the  presence  of  the  master,  mate,  and  two  others  of  the  crew,  and 
verified  by  their  signatures.  In  the  event  of  bad  weather  pre- 
venting the  completion  of  this  formality  during  any  twenty-four 
hours,  the  entry  when  made  should  contain  a  statement  to  that 
effect. 

For  every  voyage  of  not  less  than  seventy-two  hours'  duration, 
and  for  every  voyage  of  less  duration  when  damage  to  ship  or 
cargo  or  both  has  been  sustained  or  is  anticipated,  it  should  be 
compulsory  upon  the  master  to  deposit  his  log-book  with  the 
Collector  of  Customs  at  the  time  of  reporting  his  vessel,  and  not 
later  than  twenty-four  liours  after  her  first  arrival  in  port ;  the 
date  and  time  of  sucli  deposit  should  be  noted  in  the  log  by  the 
official  receiving  the  report,  as  also  the  date  and  time  at  which 
the  log  is  returned  to  the  master  on  the  final  outward  clearance  of 
the  vessel.  These  formalities  might  supersede  the  present  system 
of  noling  Protests. 

When  it  is  required  to  extend  the  vessel's  Protest,  the  notary 
employed  for  this  purpose  should  make  to  the  Collector  application 
in  writing  for  the  log-ljook  upon  a  form  countersigned  by  the 
master  or  agent  of  the  vessel,  the  log-book  to  be  delivered  to  the 
notaiy  only.  Translations,  where  such  may  be  required  of  log- 
books in  foreign  languages,  should  bo  prepared  by  the  notary,  or 
by  some  competent  person  appointed  by  and  responsible  to  liim, 
and  the  notary  should  show  upon  the  log-book  itself  the  portions 
which  have  been  extracted  or  translated  for  the  purposes  of  the 
Protest.  The  log-book  when  done  with  should  be  returned  by  the 
notary  direct  to  the  Collcci  or  of  Customs,  together  with  a  statement 


MERCHANT   SHIPS'   LOGS   AND   PROTESTS.  GG.3 

of  the  date  when  and  place  wliero  the  Protest  was  extended,  and  of 
the  names  of  the  signatories  and  of  the  notary,  and  such  state. nent 
should  remain  attached  to  the  ship's  report,  and  be  accessible  at  all 
times  upon  written  request  and  payment  of  a  small  fee. 

Protests  to  be  made  by  foreigners  not  conversant  with  the 
English  language  should  be  written  in  2)arallel  columns,  and  should 
be  read  over  to  the  signatories  in  their  own  language. 

The  Protest  should  be  a  public  document,  and  the  notary  Vjy 
whom  it  is  extended  should  be  empowered  to  supply  copies  to 
persons  requiring  the  same  upon  payment  of  a  reasonable  fee. 

A  regulation  that  the  Collector  of  Customs  on  delivering  the 
log  to  a  notary  should  register  the  delivery  in  the  log,  and  that 
the  notary  therein  named  should  be  the  only  one  capable  of  drawing 
that  particular  Protest,  would  prevent  the  possibility  of  an  attempt 
to  influence  or  coerce  a  scrupulous  notary  by  a  threat  held  out 
directly  or  indirectly  of  leaving  him  for  a  less  punctilious  one. 

By  the  adoption  of  these  or  similar  precautions  the  Extended 
Protest  would  attain,  or  rather  regain  its  position  as  a  document 
to  be  relied  on  as  containing  a  true  statement  of  facts,  and  not  be, 
as  in  many  cases  it  is  at  present,  one  framed  by  the  master  in 
conjunction  with  his  owners,  their  agents  or  their  advisers,  either 
to  hold  back  or  conceal  the  particulars  of  the  occurrences  therein 
referred  to  to  the  utmost  extent  compatible  with  making  any  state- 
ment whatever  concerning  them ;  or,  worse  still,  as  it  sometimes 
is,  a  deliberately  false  and  untrue  account  of  events  which  never 
happened  at  all,  instead  of  an  ofEcial  and  reliable  record  of  the 
fullest  and  most  complete  description  of  the  particular  occurrences 
in  it  contained,  such  as  it  is  of  the  utmcst  importance  to  ship- 
owners, underwriters,  and  the  mercantile  ccmmuuity  at  large  that 
it  should  be. 

This  memorandum  wr.s  communicated  to  the  Board  of 
Trade,  the  principal  members  of  Loth  Houses  of  Parlia- 
ment, the  most  important  Chambers  of  Commerce  and 
Underwriting  bodies  of  this  Country  and  the  Colonies,  and 
the  different  replies  I  received  convinced  me  that  it  was 
a  subject  which  w^as  generally  considered   as  requiring 


664  MARITIME   LEGISLATION. 

attention,  but    that    unfortunately    the   luiblic   was   not 
sufficiently  alive  to  its  importance. 

Under  these  circumstances  I  made  use  of  the  Confer- 
ence of  the  Association  for  the  Eeform  and  Codification  of 
the  Law  of  Xations,  which  took  place  in  August  1879,  in 
the  Guildhall  of  the  city  of  London,  to  read  the  following 
report : — 

Having  had  frequent  opportunities  in  the  pursuit  of  my  jDro- 
fessional  avocation  for  becoming  acquainted  with  the  modus 
operandi  in  keeping  the  log-books  on  board  of  merchant  ships,  and 
with  the  manner  in  which  ships'  protests  are  extended,  it  has  been, 
in  the  interest  of  my  clients,  my  duty  to  call  the  attention  of  Her 
Majesty's  Government  and  of  the  Chambers  of  Commerce  and 
Shipping  in  this  country  to  the  necessity  of  making  alteration  in 
the  enactments  relating  to  these  two  important  and,  as  I  will 
shortly  show,  intimately  connected  subjects. 

For  tliis  reason  I  have  been  requested  by  the  executive  council 
of  this  Association  to  report  to  you  on  the  state  of  the  law,  and 
as  to  the  steps  desirable  to  be  taken  for  obtaining  the  necessary 
alterations  in  it. 

The  log-book  on  board  of  merchant  ships  has  been  intended 
from  time  immemorial  to  be  used  for  the  record  of  the  daily  oc- 
currences during  the  voyage.  Everything  of  any  imaginable 
interest  to  the  ship,  its  crew,  passengers,  and  cargo  was  to  be 
carefully  and  truthfully  recorded  in  it,  commencing  with  the  wind 
and  weather  in  its  minutest  details,  the  course  steered,  the  changes 
of  the  tide,  and  the  meeting  with  other  vessels,  and  ending  with 
any  births  or  deaths  or  other  matters  concerning  the  well-being  of 
crew  or  passengers.  Of  course,  among  other  entries,  particular 
reports  respecting  the  loading  or  the  discharging  of  the  cargo,  and 
any  accidents  happening  durin*^  the  voyage,  were  to  be  made.  In 
short,  these  log-books,  when  propei'ly  verified  by  the  signatures  of 
the  master,  the  mate,  and,  according  to  some  legislations,  b}'  one 
or  more  of  the  crew,  were  intended  to  and  did  obtain  all  credence 
fi«  piiJiljc  and  olTicial  documents. 


MERCHANT   SHIPS'   LOGS   AND   PROTESTS,  605 

I  then  referred  to  my  observations  on  sections  280 
and  284  of  the  Merchant  Shipping  Act,  1854,^  and  con- 
tinued : — 

It  will  be  also  seen  that  I  at  the  same  time  called  the  attention 
of  the  public  authorities  to  the  necessity  for  altering  the  proceed- 
ings with  regard  to  the  extension  of  ships'  protests,  a  subject 
which  is  so  closel}'  connected  with  tiie  law  relating  to  ships'  logs 
that  it  cannot  be  separated  from  it. 

Since  then  the  attention  of  the  Board  of  Trade  has  been  twice 
called  to  this  subject : — 

First  (as  will  be  seen  by  the  return  to  an  order  of  the  House 
of  Commons,  dated  May  15,  1876,  for  coj^ies  of  letters  and  corre- 
spondence between  the  Board  of  Trade  and  others  on  the  subject  of 
sea  protests),  by  the  Secretary  of  Lloyd's,  wlio,  addressing  the 
Board  of  Trade  on  December  G,  1875,  called  their  attention  to  the 
ver}^  unsatisfactory  manner  in  which  sea  protests  were  prepared, 
and  drew  up  the  following  five  objections  to  the  present  plan  of 
extending  protests  by  a  notary,  viz. : — 

'  1.  That  it  may  be  made  at  any  time  after  the  arrival  of  the 
ship,  and  that  it  may  be  and  is  often  framed  to  meet  a  particular 
necessity. 

'  2.  That  it  is  made  by  a  notary  who  is  not  comi^etent  to  verify 
or  correct  a  statement. 

'  3.  That  in  the  absence  of  a  central  office  where  protests  might 
be  registered,  opposing  owners  and  captains,  notably  in  collision 
cases,  apply  to  different  notaries  and  declare  to  different  state- 
ments, and,  later,  swear  to  them  in  a  court  of  law. 

'  4.  That  faith  is  not  given  to  a  protest  which  such  a  document 
ought  to  command,  owing  to  the  many  known  and  many  suspected 
cases  of  fraud  which  have  been  brought  to  light. 

'  5.  That  the  formality  of  a  notary's  seal  and  signature  may 
have  the  effect  in  many  cases,  especially  abroad,  of  giving  faith  where 
no  ftiith  ought  to  be  given.' 

The  Secretary  of  Lloyd's  suggested  that  a  public  official  at  the 
custom-houses  should  be  clothed  with  a  proper  authority  for 
extending  ships'  protests,    and   made   some   other   very    valuable 

■  Vide  p.  542. 


GGG  MAr.ITIME   LEGISLATION. 

suggestions,  in  wliicli  he  was  supported  by  the  present  Wreck 
Commissioner,  the  Liveqjool  Underwriters'  Association,  someotlicr 
equally  important  bodies,  some  leading  solicitors,  and  by  me. 

Unfortunately,  for  reasons  not  difficult  to  guess,  no  legislation 
on  the  subject  was  then  or  has  ever  yet  been  attempted. 

The  second  attempt  to  move  in  the  matter  was  made  by  my 
issuing  a  memorandum  in  October  1878.^ 

This  memorandum  I  caused  to  be  presented  to  the  Board  of 
Trade  and  to  those  of  Her  Majesty's  Ministers,  and  the  members  of 
both  Houses  of  the  Legislature  who  could  be  expected  to  take  an 
interest  in  the  subject ;  to  all  the  most  important  bodies  of  Under- 
writers, and  to  the  Chambers  of  Commerce  and  of  Shipping.  It 
was  most  favourably  commented  upon  by  the  public  press,  and  was, 
with  few  exceptions,  in  general  so  satisfactorily  received,  that  I 
considered  myself  authorised  to  write  the  following  letter  to  Lord 
Sandon,  the  President  of  the  Board  of  Trade,  on  January  10  last : — 

'  Relying  on  the  promise  your  Lordship  gave  me,  that  the  con- 
tents of  the  memorandum  I  took  the  liberty  to  submit  to  you  on 
the  above  subject  on  October  4  last  should  have  your  personal 
attention,  I  consider  it  my  duty  to  state  that  out  of  a  number  of 
communications  I  received  from  public  bodies  and  private  indivi- 
duals, criticising  the  proposals  contained  in  the  memorandum 
above  alluded  to,  very  few  deny  the  desirability  of  an  alteration  of 
the  law  as  far  as  the  extension  of  "merchant  ships'  protests"  is 
concerned ;  and  those  which  really  do,  base  their  objection  on  the 
ground  that  as  British  shipowners  as  a  rule  are  honourable  men, 
and  as  in  this  country  protests  are  not  considered  as  conclu- 
sive evidence  of  the  facts  on  which  claims  are  made,  there  is  no 
necessity  for  any  legislation  on  the  subject. 

'  Now  I  need  not  point  out  to  your  Lordship  the  fallacy  of  such 
an  argument. 

'  The  trade  of  this  country  brings  the  vessels  not  only  of  British 
shipowners  but  of  others  within  its  territory.  The  Britit^li  banker, 
merchant,  or  underwriter  is,  through  the  ramifications  of  his 
transactions,  bound,  not  by  law  indeed,  but  by  the  equally  stringent 
unwritten  code  of  business  honour,  daily  to  pay  large  amounts  on 

'  Vide  ante,  p.  058. 


MERCHANT   SHIPS'   LOGS   AND    PROTESTS.  GG7 

tliG  fiiitli  of  mercli!Uit  sliips'  protests  if  properly  prepared  in 
accordance  with  the  hiws  and  customs  of  the  pkice  of  issue. 

'  As  the  only  safeguard  for  such  banker,  merchant,  or  under- 
writer is  supplied  by  tlie  notarial  seal  attached  to  the  protest,  and 
as  it  is  impossible  for  any  such  individual  to  do  more  than  to  see 
that  the  document  in  outward  appearance  shows  no  sign  of  fraud, 
the  Government  of  the  country  in  which  such  documents  are 
issued  is  bound  to  take  every  care  that  the  chances  of  fraud  in  the 
issue  of  each  document  are  minimised. 

'  It  is  true  that  in  a  British  court  of  law  a  merchant  ship's  pro- 
test is  not  taken  as  conclusive  evidence  of  the  facts  therein  related, 
but  it  is  well  known  that  only  a  very  small  proportion  of  the  cases 
in  which  such  protests  are  all-important  become  subject  to  litiga- 
tion, and  the  far  greater  number,  not  being  litigated,  are  decided 
on  the  statements  made  in  these  protests,  and  depend  entirely  on 
their  bona  fides  ;  furthermore,  your  Lordship  will  bear  in  mind 
that  in  all  foreign  courts  of  law  a  merchant  ship's  protest  is  taken 
as  conclusive  evidence.  How  dangerous  it  is,  therefore,  to  allow 
the  present  state  of  things  (vide  Parliamentary  Return  of  May  15, 
1876)  to  continue! 

'  In  one  of  the  suggestions  I  made  in  my  memoranduiu,  at  the 
bottom  of  page  2,  that — 

'  "  The  entry  be  daily  read  over  in  the  presence  of  the  master, 
mate,  and  two  others  of  the  crew,  and  verified  by  their  signa- 
tures," ' 

I  understand  special  objection  has  been  taken,  and  that  some  of 
the  Elder  Brethren  of  the  Trinity  House  are  of  opinion  that  the 
carrying  out  of  the  suggestion  would  be  subversive  of  discipline 
on  board.  If  this  view  be  correct,  the  withdrawal  of  this  special 
suggestion  can  be  no  impediment  to  the  introduction  of  the 
general  reform  of  which  I  think  I  have  demonstrated  the  para- 
mount necessity. 

'■  With  these  observations  I  recommend  this  very  important 
subject  to  your  Lordship's  most  serious  consideration.' 

It  may  be  considered  that  in  this  letter  every  objection,  as  far 
as  stated,  to  my  proposals  has  been  answered,  but  nevertheless  up 

^  These  words  are  printed  in  italics  in  the  Memorandum. 


668  MARITIME   LEGISLATION. 

to  this  present  day  no  change  has  taken  place,  no  suggestion  has 
been  officially  made  to  bring  these  difficulties  to  a  satisfactory 
solution. 

Strangely  enough  the  Council  of  the  Incorporated  Law  Society 
in  their  last  report  to  the  general  meeting  of  their  members  on 
July  II  last,  suggested  that  a  Bill  should  belaid  before  Parliament 
to  enable  solicitors  to  undertake  notarial  duties  without  having 
qualified  themselves  in  the  manner  at  present  prescribed  by  law. 
In  answer  to  this  the  public  notaries  of  London  issued  a  printed 
memorandum  in  which  they  state  their  objections  to  that  proposal 
of  the  Incorporated  Law  Society,  and  I  cannot  help  expressing  the 
opinion  that,  notwithstanding  the  respect  and  confidence  I  have 
for  some  of  those  who  in  some  towns  of  the  United  Kingdom 
combine  the  positions  of  solicitors  and  notaries  in  their  own 
persons,  I  see  very  grave  objections  to  such  a  proposal  as  that  of 
the  Incorporated  Law  Society.  It  must  be  borne  in  mind  that  a 
notary  is  a  public  officer  who  must  act  pro  bono  imhlico  impartially 
and  independently,  whereas  a  solicitor  in  his  professional  capacity 
and  in  his  usual  course  of  business  is  liable  to  be  the  legal  adviser 
of  some  or  other  of  the  parties  to  a  mercantile  transaction  affected 
by  the  circumstances  related  in  the  protest.  Now  if  in  such  a 
case  he  draws  up  the  ship's  protest  he  must  be  more  than  human  if 
he  is  able  to  separate  the  usual  animus  which  ought  to  insj^ire  all 
his  actions  in  the  interest  of  his  client  from  the  official  notarial 
work  he  attempts  to  perform. 

I  mention  this  circumstance  in  order  to  show  that  the  matter 
brought  herewith  under  your  notice  must  sooner  or  later  come 
under  the  consideration  of  Her  Majesty's  Government,  and  that 
it  is,  therefore,  high  time  to  consider  how  this  subject  may  most 
efficiently  and  beneficially  be  pressed  forward.  Of  course  public 
opinion  will  do  most,  and  I  therefore  beg  of  you  to  do  your  utmost 
to  assist  in  carrying  some  such  joroposal  as  mine  into  effect. 

A  copy  of  this  report  was  also  communicated  to  aU 
tlie  parties  likely  to  take  an  interest  in  this  important 
matter.  In  February  1880  I  was  given  to  understand 
that  a  negotiation  had   been  initiated  by  the   Imperial 


MEr. CHANT  SHIPS'   LOGS   AND   PROTESTS.  6G9 

German  Government  with  our  own,  with  the  object  of 
securing  by  treaty  arrangements  the  taking  legally  bind- 
ing evidence  within  the  jurisdiction  of  the  two  countries. 
I  then  transmitted  to  the  Foreign  Office  a  copy  of  the  above 
report  and  suggested  that  this  opportunity  should  be  used 
for  entering  into  an  international  arrangement  for  the  im- 
provement  of  the  existing  system  of  preparing,  swearing, 
and  issuing  merchant  ships'  protests. 

The  whole  result  of  this  attempt  was  that  I  heard  from 
the  Foreign  Office,  on  March  10, 1880,  '  that  Lord  Salisbury 
has  been  informed  by  the  Board  of  Trade  that,  whilst  in 
their  opinion  some  of  your  suggestions  and  criticisms 
deserve  consideration,  they  do  not  see  their  way  to  dealing 
with  the  subject  at  present.' 

Since  that  time  nothing  has  been  done,  and  all  the 
circumstances  remain  as  heretofore,  waiting  for  the  im- 
provement which  the  parties  interested  in  the  maritime 
commerce  of  this  country  and  the  colonies  have  a  right 
to  expect. 


670  MAIUTDIE    LEGISLATION. 


VAEIOUS  PAPERS  SHOWING  HOW  MOST  OF 
THESE  SUBJECTS  HAVE  BEEN  URGED 
UPON  THE  BOARD  OF  TRADE. 

To  show  liow  many  years  ago  tlie  reforms  suggested  in 
these  pages  have  been  urged  upon  the  Board  of  Trade,  I 
print  the  following  letter  and  documents  sent  by  me  to  the 
Board  in  1867  : — 

15  Fenchurch  Buildings,  London :  June  4,  1867. 

My  Lords, — The  kindred  subjects  of  wreck  and  salvage,  and 
the  amendment  of  our  law  of  merchant  shipping,  have  of  late  en- 
grossed so  large  a  share  of  public  attention,  that  I  feel  sure  I  need 
utter  no  apology  for  assuming  that  they  have  been,  and  continue 
to  be,  favoured  with  the  most  particular  consideration  of  the  Board 
of  Trade,  and  that  any  suggestions  or  expressions  of  opinion  bear- 
ing upon  the  question  will  bo  favourably  received  and  carefully 
considered. 

It  is  to-day  my  duty,  in  my  capacity  as  Kepresentative  for  the 
United  Kingdom  of  Great  Britain  and  Ireland  of  influential  foreign 
underwriters,'  whose  interests  I  protect  in  the  same  manner  as  the 
Salvaere  Association  those  of  certain  bodies  of  underwriters  in 
London  and  elsewhere,  to  lay  before  your  Lordships  memorials  from 
so  many  diflerent  quarters,  bearing  signatures  so  numerous  and 
respectable,  that  I  cannot  but  think  that  your  Lordships  will  be 
astonished  at  the  universality  and  extent  of  feeling  aroused  upon 
these  suljjects  in  countries  and  places  which  have,  in  mercantile 

'  The  Boards  of  Underwriters  and  Insurance  Companies  of  Amsterdam, 
Antwerp,  Bremen,  Liibcck,  New  Orleans,  New  York,  Eostock,  Stralsimd,  and 
otlierH. 


LETTER    TO    BOARD    OF    TRADE,  671 

matters,  generally  shown  a  very  deep-rooted  antagonism  one  to  the 
other. 

These  memorials,  forwarded  to  me  from  Amsterdam,  Antwerp, 
]5rL'inen,  Colborg  (with  Stolp  ami  Riigeuwalde),  Copenhagen, 
Danzig,  Hamburg,  Liibeck,  Rostock,  and  Rotterdam,  I  have  been 
desired  to  lay  most  humbly  before  your  Lordships  and  Her  Majesty's 
Government,  and  I  venture  to  hope  that  the  sentiments  therein 
expressed  may  be  of  service  in  accelerating  the  introduction  of  a 
reform  so  long  wanted  and  so  universally  desired. 

It  would  not  become  me  to  take  this  opportunity  of  recapitu- 
lating at  any  length  the  arguments  and  opinions  which  have  been 
already  expressed  by  myself  on  different  occasions,  and  especially  : 

In  18Gi  in  a  memorial  on  the  subject  of  the  importance 
of  the  Receivers  of  Wreck  taking  depositions  from  shipmasters 
of  all  nations,  which  memorial  was  adopted  by  the  Salvage 
Association  of  Lloyd's  and  others,^ 

In  1866  in  my  observations  on  the  Merchant  Shipping 
Act,  &c.,  forwarded  to  the  Right  Hon.  Sir  Stafford  Northcote, 
on  December  16  last,^  and 

In  the  present  year,  in  my  observations  on  the  Admiralty 
Jurisdiction  Bill,  forwarded  to  the  Right  Hon.  Stephen 
Cave  on  April  16.^ 

Even  more  recently  by  Mr.  Harper,  the  secretary  to  the  Salvage 
Association  above  referred  to,  in  his  able  and  convincing  report 
on  the  subject  of  wreck  and  salvage  on  the  coast  of  Kent,  more 
particularly  in  reference  to  the  case  of  the  '  North,'  and  by  many 
other  associations  and  private  persons  of  far  greater  capacity  and 
influence  than  myself. 

I  must  ask  permission,  however,  to  recapitulate  the  principal 
points  upon  which  my  daily  experience  tells  me  that  amended 
legislation  is  imperatively  necessary,  as  will,  I  think,  sufiici(>ntly 
appear  upon  reference  to  the  papers,  documents,  and  opinions 
above  referred  to. 

1.  The  ship's  log-book — instead  of  the  present  official  and 
'  Vide  p.  655.  *  Vide  p.  527.         ^  Vide  p.  lo3,  2nd  edition. 


672  MARITIME   LEGISLATION. 

ordinary  log-books  kept  on  board  every  vessel,  one  log-book 
only  to  be  kept,  in  a  form  issued  by  Government,  and  duly 
stamped,  signed,  and  registered,  so  as  to  be  beyond  all  possi- 
bilitv  of  fraud  ;  this  regulation  has  been  long  introduced  in 
many  parts  of  the  Continent. 

2.  The  dejDosition  before  the  Receiver  of  Wreck  to  be 
compulsory  upon  Shipmasters  of  all  Nations. 

3.  The  mode  of  extending  protests  to  be  amended. 

4.  The  duties  of  Receiver  to  be  in  all  cases  discharged  by 
the  Collectors  of  Customs,  whose  general  efficiency  cannot  be 
too  highly  praised.  But  I  cannot  refrain  from  suggesting 
the  necessity  of  raising  the  salaries  of  these  very  valuable 
officials,  who  are  too  frequently  inadequately  remunerated  for 
the  arduous  duties  they  have  to  perform,  in  most  cases  requiring 
all  their  energy,  ability,  and  discretion ;  a  ship^vreck  may  at 
any  moment  place  in  their  hands  the  control  of  property  to 
an  amount  gi-eater  than  in  the  ordinary  course  of  business 
would  come  before  them  in  twenty  years.  I  have  known  a 
case,  which  probably  is  not  singular,  where  a  Collector  of 
Customs,  instead  of  receiving  extra  payment  for  performing 
the  important  duties  of  Receiver,  has  actually  been  subjected 
to  pecuniary  loss,  forfeiting  during  his  absence  from  his  own 
place  of  business  the  emoluments  for  overtime  which  he  was 
entitled  to  claim  from  the  public  requiring  his  services, 

5.  The  same  limits  to  be  assigned  to  the  districts  of 
Receivers  and  Principal  Officers  of  Coastguard,  in  order  to 
j)romote  more  harmonious  working  and  more  efficient  substi- 
tution in  case  of  absence. 

6.  The  Coastguardsmen  to  be  moved  more  frequently 
from  one  station  to  another. 

7.  In  all  prosecutions  for  plunder  or  illegal  receiving  of 
wreck,  &c.,  the  obligation  to  be  on  defendant  to  prove  lawful 
possession,  as  in  clauses  210,  215,  215,  305,  and  30G  of  the 
Customs  Consolidation  Act. 

8.  A  pronqit  and  inexpensive  mode  of  settlement  of  salvage 
claims  to  be  introductcd,  and  costs  never  to  be  allowed  to 
salvors  when  they  without  due  cause  apply  to  higher  tribunals 


LETTER   TO   BOARD   OF   TRADE  673 

than  absolutely  necessary.  The  shamefully  extortionate 
cleraands  made  by  boatmen  themselves,  or,  even  more  fre- 
quently, by  professional  or  quasi-professional  advisers  on  their 
behalf,  have  been  fostered  into  a  national  evil  by  the  want  of 
local  tribunals  and  by  the  absolute  unwillingness  of  the 
present  learned  Judge  of  the  Admiralty  Court  to  condemn 
salvors  in  costs.  Nor  are  these  claims  generally  resisted,  for 
the  simple  reason  that  all  the  parties  concerned  receive  their 
commission  in  proportion  to  the  amount  paid,  a  ship's  agent 
being  frequently  entrusted  with  the  care  of  the  interests  both 
of  salvor  and  ship,  and  receiving  from  both  his  payment, 

9.  Official  surveys  of  damage  to  ships  or  cargoes  by  com- 
petent persons  appointed  by  the  Receiver  to  be  provided  for, 
and,  if  possible,  rendered  compulsory  in  every  case  ;  but,  if 
not,  the  power  of  undentr iters  and  their  representatives  to 
call  for  such  surveys  to  be  distinctly  recognised.  This  will 
be  the  most  effectual  method  of  putting  a  stop  to  the  present 
sj'stem  of  improper  discounts,  where  fifteen  or  twenty,  or  even 
more  per  cent,  are  allowed  and  divided  between  the  dishonest 
shipmaster  and  his  even  more  culpable  adviser,  to  the  pre- 
judice of  the  absent  owners  and  underwriters. 

10.  The  limited  liability  legislation  of  the  Merchant 
Shipping  Act  Amendment  Act,  having  given  rise  to  decisions 
directly  contrary  to  some  of  the  fundamental  principles  of 
International  Law,  and  having  been  the  means  of  inflicting 
great  injury  upon  the  interests  of  the  less  wealthy  class  of 
shipowners,  to  be  immediately  reconsidered  and  revised. 

11.  Seriously  to  consider  the  necessity  of  pointing  out 
to  the  foreign  Governments  who  complain  of  the  irregularities 
on  our  coasts  in  matters  of  Salvage  and  Average,  how  much 
they  could  assist  in  putting  down  those  abuses  by  the  o-eneral 
adoption  of  our  system  of  making  a]i])()iii(monts  of  paid  con- 
sular officers  only,  as  it  is  evident  from  the  wording  of  the 
Clauses  in  the  Treaties  concluded  with  reference  to  the 
functions  appertaining  to  these  officers,  that  it  was  never  in- 
tended to  entrust  their  execution  to  parties  who  would  derive 
any  pecuninry  advantage  from  the    advice  thev  were  called 

X   X 


074  MAPJTIME    LEGISLATION. 

upon  to  give  either  in  a  ministerial  or  ju:licial  capacity,  b:it 
at  any  rate  in  a  perfectly  impartial  manner. 

12.  Tlie  introduction  into  this  country  of  the  Inter- 
national General  Average  Rules  adopted  at  York  in  1864, 
and  repeatedly  brought  under  the  notice  of  Her  Majesty's 
(Tovernment  by  the  United  Chambers  of  Commerce  of  this 
country  and  other  influential  bodies. 

18.  The  preparing  and  settling  of  average  statements 
should  be  under  the  immediate  control  of  a  public  department, 
say,  for  instance,  the  Registry  of  the  High  Court  of  Admiralty, 
and  the  adoption  of  the  very  useful  enactments  of  the 
German  Law  cannot  be  too  strongly  recommended. 

14.  The  imperative  necessity  of  doing  away  with  com- 
pulsory Pilotage,  and  of  altering  the  present  system  of  grant- 
incr  and  renewing  Pilots'  licenses  in  a  manner  more  suitable 
to  the  public  requirements. 

15.  The  making  away  with,  or  aiding  and  abetting  in 
scuttling,  or  otherwise  destroying,  a  vessel  for  the  purpose  of 
defrauding  its  Underwriters  or  those  who  have  an  interest 
therein,  or  in  the  cargo  or  freight,  should,  by  agreement  be- 
tween the  principal  maritime  nations,  be  declared  an  Act  of 
Piracy,  otherwise  no  possibility  exists  of  putting  a  stop  to 
these  fraudulent  practices,  which  have  for  the  last  fifteen 
years  been  so  greatly  on  the  increase,  and  are  the  more 
difficult  to  prevent,  as  present  legislation  is  continually  de- 
feated in  its  attempts  to  punish  wrong-doers  by  questions  of 
jurisdiction. 

10.  The  Masters,  Mates,  and  Engineers  of  'Colonial 
Ships '  to  be  under  the  same  regulations  respecting  exatni na- 
tions and  certificates  as  those  of  ships  hailing  from  the 
United  Kingdom. 

17.  The  adoption  of  the  International  Law  of  Affreight- 
ment as  agreed  upon  at  Sheffield,  1865. 

18.  To  consider  if  it  would  be  desirable  to  fix  by  legislative 
enactment,  as  in  the  German  Law,  for  instance,  has  been 
very  successfully  done,  what  should  constitute  a  claim  for 
assistance,  nnd  wh;it  fbi-  salv.-ige. 


LETTER    TO   BOARD   OF   TRADE.  675 

How  this  amended  legislation  is  to  be  brought  about  is  not  for 
nie  to  suggest,  bat  it  has  often  struck  me  that  to  perform  the  work 
efficiently,  the  issuing  of  a  Royal  Commission  would  be  necessary, 
which  would  in([uire  into  the  above  evils  so  repeatedly  complained 
of,  would  soon  obtain  the  clear  evidence  of  their  existence,  and 
would  consider  and  recommend  the  fullest  means  to  accomijlish  a 
thorough  reform. 

Your  Lordships  will  always  find  me  ready  and  willing  to  assist 
in  any  work  leading  in  that  direction. 

I  have  the  honour  to  be,  my  Lords,  most  respectfully,  your 
Lordships'  obedient  humble  Servant, 


Ernst  Emil  Wendt. 


The  Lords  of  the  Committee  of  Her  Majesty's 
Privv  Council  for  Trade,  Whitehall. 


The  enclosures  in  the  above  were  as  follow : — 

We,  the  undersigned,  being  Underwriters  of  the  port  of  Amster- 
dam, in  the  Netherlands,  having  been  informed  that  Her  Majesty's 
Government  have  it  in  contemplation  to  alter  and  amend  the  exist- 
ing regulations  witli  respect  to  wrecks,  salvage  and  salvors,  and  to 
make  better  provision  for  the  settlement  of  salvage  claims,  and  for 
the  management  of  matters  relating  to  vessels  in  distress  on  the 
coasts  of  the  United  Kingdom,  do  hasten  to  express  to  Her  Majesty's 
Government  our  grateful  sense  of  the  inestimable  benefit  which  will 
be  conferred  upon  the  maritime  interests  of  the  whole  world  by  the 
proposed  "legislative  reforms,  if  carried  out  in  a  practical  and 
effectual  manner. 

We  may  be  pardoned  for  observing  that  the  frauds  practised 
upon  our  captains  in  many  parts  of  the  coast  of  the  United  Kingdom, 
the  extortionate  demands  of  salvors  and  their  advisers,  the  un- 
scrupulous manoeuvres  of  shipping  agents,  the  continual  induce- 
nients  to  dishonesty  held  out  to  inexperienced  shipmasters,  and, 
lastly,  the  enormous  outlay  attendant  upon  legal  proceedino-s, 
aggravate  to  a  most  serious  extent  the  consequences  of  misfortunes 
unavoidably  attendant  upon  maritime  industry ;  and  havino-  our- 
selves suffered  severely  from  the  evils  ahnve  described,  we  cannot 

X  X  2 


G76  MARITIME   LEGISLATION. 

but  rejoice  that  Her  Majesty's  Government  have  appreciated  the 
necessity  of  carrying  out  a  thorough  reform,  whicli  we  have  no 
doubt  will  be  attended  with  credit  to  the  country  and  advantage  to 
the  community  at  large. — Am>^terdam,  February  18G7,  with  forty- 
nine  signatures  of  the  leading  underwriters. ^ 

A  memorial  identical  with  the  above  from  Bremen,  February 

1867,   signed  by  sixty-six  gentlemen,  representing  the 

Directors  of  all  the  insurance  companies  and  the  principal 

merchants. 

A  memorial  identical  with  the  above  from  Colberg,  February 

20,  1867,  signed  by  the  four  principal  shipowners. 
Riigenwalde,  February  23,  18G7,  signed  by  the  four  principal 

shipo\NTiers. 
and  Stulj),  February  27,  1867,  signed  by  the  two  principal 

shipowners. 
A  memorial  identical  with  the  above  from  CopeyiJiagen,  signed 
by   thirty-seven  gentlemen    representing   the    principal 
underwriters,  shipowners,  and  merchants. 
A  memorial  identical  with  the  above  from  Danzig,  February 
10,  1867,  signed  by  twenty-seven  shipowners  and  mer- 
chants. 
A  memorial  identical  with  the  above  from  Ilamhuni,  signed 
by  fifty-nine  gentlemen  representing  the  different  in- 
surance and  steamship  companies  as  well  as  the  prin- 
cipal bankers,  merchants,  and  shipbrokers. 
A  memorial  identical  with  the  above  from  liostocl;  February 
1867,  signed  by  sixty-two  shipowners  and  underwriters. 
A  memorial  identical  with  the  above  from  Rotterdam,  Febru- 
ary 1867,  signed  by  the  representatives  of  fifty  insurance 
companies  and  mercantile  establishments. 


Les  soussio-nes  armateurs  et  assureurs  du  Port  d'Anvcrs  en 
Beh'ique  ay  ant  eto  informus  que  le  Gouvernement  de  Sa  Majeste 

'  The  names  of  the  parties  who  signed  these  memorials  having  been 
fully  vrinted  in  the  two  previous  editions,  it  is  supcrlhious  to  repeat  them 
here. 


MEMORIALS.  677 

bvitannique  a  I'intention  de  changer  et  d'amender  les  lois  existantes 
pour  les  cas  de  iiaufrage  et  le  reglement  des  services  rendus  par 
les  sauveteurs  a  des  navires  en  detresse  sur  les  cotes  du  littoral 
anglais,  s'empressent  d'exprimer  au  Goavernement  de  Sa  Majeste 
britannique  leur  gratitude  pour  Timmense  bienfait  qui  resulterait 
de  cette  mesure  pour  les  interuts  maritimes  du  monde  entier  si  les 
reformes  legislatives  projetees  etaient  pratiquement  et  efficacement 
mises  k  execution. 

Qu'il  leur  soit  permis  d'observer  que  les  fraudes  auxquelles  nos 
capitaines  sont  sujets  sur  differents  points  des  cotes  du  lloyaume- 
Uni  et  les  demandes  exorbitantes  des  sauveteurs  et  de  leurs 
conseillers  sont  aggravees  surtout  par  les  manoeuvres  deloyales  des 
agents  maritimes. 

Les  enormes  depenses  qu'entrainent  des  poursuites  judiciaires 
rendent  cet  etat  de  clioses  fort  difficile  a  remedier ;  les  interesses 
preferent  se  soumettre  a  un  accord  qnelque  desastreux  qu'il  soit 
plutot  que  de  s'engager  dans  un  long  et  couteux  proces. 

Les  soussigues  ayant  ete  eux-memes  victimes  de  cet  etat  de 
clioses  deplorable,  ne  peuvent  que  se  rejouir  de  la  decision  prise 
par  le  Gouvernement  britannique  de  pousser  a  line  rcforme 
serieuse,  immense  bienfait  tant  pour  le  pays  meme  que  pour  le 
commerce  etranger  en  general. — jbivers,  13  Fevrier  1867.  Signed 
by  the  representatives  of  tvi^enty-five  insurance  companies  and 
mercantile  establishments. 


AN    DIE    UOHE    EEGIERUNG    IHRER    MAJESTAT    DER    KOISIGJN    VON 
GROSSBRITANNIEN    UND    IRLAND. 

Mnjehene  Vorstellung  cler  unterzeiclineten  Seeversicherer,  Scldffsrlieder 
unci  Kaujleuie  zu  Lilheck. 

Die  unterzeichneten  Seeversicherer,  Schiffsrheder  und  Kaufleute 
zii  Liibeck  haben  erfahren,  dass  die  hohe  Eegierung  Ihrer  MajestJit 
der  Konigin  von  Grossbritannien  uud  Irland  beabsichtigt,  die  jetzt 
bestehenden  Regulative  fiir  die  Behandluug  von  Schiffbriichen 
Bergung  aus  Seenoth  und  Bergerlohn  zu  iiuderu  uud  zu  ^•er\•oll- 
kommuen,  sowie   auch    bessere   Maassregeln   zu    treffen    fiir   die 


078  MARITIME   LEGISLATION. 

ErlediguDg  von  Bergelolm-Anspruchen  unci  fiir  die  Handhabung 
der  An^elegenLeiten,  die  sicL  auf  ScliifFe  beziehen,  welclie  sich  an 
den  Enfflischen  Kiisten  in  Seenotli  befinden,  und  eilen,  der  liohen 
Regierung  Hirer  Majestat  der  Konigin  von  Grossbritannien  und 
Irland  unsere  dankbare  Anerkennung  der  unschiitzbaren  Wohlthat 
auszuspreclien,  -o'elclie  den  Interessen  zur  See  der  ganzen  Welt 
durcli  die  beabsiclitigten  legislativen  Reformen  zu  Tlieil  werden 
wird,  wenn  sie  in  practisclier  und  wirksamer  Weise  ausgefiilirt 
werden. 

Es  wird  verzeiblicli  sein,  wenn  wir  bemerken,  dass  die  Betrii- 
gereien,  welclie  gf'gen  unsere  Scliiffer  an  manchen  Punkten  der 
Englischen  Kuste  veriibt  werden,  die  gelderpresserisclien  For- 
derungen  der  Berger  und  ilirer  Rathgeber,  die  gewissenlosen 
KunstgrifFe  der  Agenten,  die  bestandigen  Verlockungen  zur 
Unelirliclikeit,  deuen  unerfabrene  Scliiffer  ausgesetzt  sind,  und 
scbliesslicli  die  enormen  Auslagen,  welclie  mit  dem  gericlitliclien 
Verfahreu  verkniipffc  sind,  in  hoheni  Grade  die  Unfalle  noch 
verscliliinmern,  welclie  sclioii  unvermeidlicb  mit  der  Scliiflfahrb 
verkniipft  sind  ;  wir  konnen  daber  uns  nur  freuen,  dass  die  liolie 
Regierung  Ihrer  ]\lajestat  der  Konigin  von  Grossbritannien  und 
Irland  sich  von  der  Notliwendigkeit  einer  griindliclien  Reform 
iiberzeugt  bat,  und  zweifeln  nicht,  dass  dieselbe  fiir  England 
riihmlich  und  fiir  alle,  die  Interessen  zur  See  haben,  niitzlich  sein 
werde.  —  Liil'ccJi,  dun  IG  Februar  18G7.  Signed  by  thirteen 
representatives  of  insurance  companies  and  mercantile  establish- 
ments. 


The  Committee  of  the  Merchant  Societ}',  Copenhagen  : 
March  5,  18G7. 

Sir, — In  your  letter  of  17tli  last  month  you  have  been  pb  ased 
to  inform  the  Committee  that  you  have  learned  from  London  lliat 
th(;  British  Government  have  intended  to  lay  before  the  pres;'iit 
]^arliament  several  proposals,  with  the  view  of  improving  the 
Maritime  Laws  hitherto  in  force  in  Great  Britain,  and  you  submit 
to  this  Committee  whether  tlie  same  sliould  not  have  an  occasion 
—  like  similar  ;Mit  Imrit  ics  abroad  bav(^  bad — to  give  tlicir  ojiiniou 


MEMOKIAl.S.  r.ry 

for  the  purpose  of  promoting-  such  a  reform  of  the  law  in  England, 
and  specially  for  the  purpose  of  contributing  to  an  improvement 
of  the  British  law  respecting  saving,  salvage,  and  ('ourt  charges 
for  settling  maritime  {|U(stions  of  dispute.  In  c()ns('(iuence  hereof 
the  Committee  beg  leave  to  express  that  they  lully  approve  of  the 
wish  that  the  British  law  in  the  said  respect  should  undei-go  an 
essential  reform.  It  is  a  well-known  fact,  to  any  one  who  has 
been  so  unfortunate  to  have  been  phiced  niid.r  those  circuii  stances, 
that  the  detriments  and  losses  to  which  the  seafaring  p(  rson  and 
the  shipping  is  subject  on  the  British  coast  is  not  a  little  increased 
by  the  deficient  mode  of  proceedings  in  such  cases.  The  expenses 
connected  with  the  saving  alone  to  the  salvors  and  their  assistants 
generally  consume  too  great  and  inadequate  a  portion  of  the  value 
saved.  The  want  of  sufficient  laws  to  regulate  the  mode  of  pro- 
ceedings further  exposes  the  owners  and  others  concerned,  through 
ships'  agents  and  otherwise,  to  considerable  loss ;  and  to  seek 
recourse,  by  means  of  law  proceedings,  is  connected  with  so  great 
expenses  that  merely  from  this  reason  this  course  is  in  many  cases 
inexpedient.  We  therefore  do  not  doubt  that  a  reform  might  be 
effected  which  would  be  received  here,  as  well  as  other  places, 
with  thankfulness  by  all  persons  interested  in  shipping  and  trade. 
This  is  the  opinion  we  are  ready  to  give,  but  we  are  not  certain 
whether  it  would  be  proper  to  forthcome  direct  with  the  same  to 
any  authority  in  England,  partly  because  we  do  not  know  how  far 
such  a  course  would  meet  with  approval,  partly  because  we  are 
uncertain  whether  such  a  course  should  not  be  taken  through  our 
own  Government ;  but,  authorising  you  to  make  use  of  the  present 
as  you  may  think  proper,  we  beg  to  limit  our  answer  to  these 
lines.     Signed  by  twelve  merchants. 

To  S.  Gram,  Esq., 
Manager  of  the  Copenhagen  Maritime  Insurance  Association. 

For  a  true  and  faithful  translation  of  the  Danish  original  produced 
to  nie. 

C.  W.  Lange, 
Translator  duly  sworn  and  admitted. 


Copenhivgeu  :  March  14,  lbb7. 


680  MAHITIMK   LEGISLATION. 

It  may  he  added  that  an  identical  memorial  to  the  one 
previously  printed,  dated  Amsterdam,  February  18G7, 
was  received  by  me  from  New  Orleans  with  the  signatures 
of  twenty-five  representatives  of  marine  insurance  com- 
panies and  merchants,  and  transmitted  by  me  to  the  Board 
of  Trade  on  June  24,  1867. 


681 


XI. 

APPELLATE  JURISDICTION  L\  MAIUTIME 

CAUSES. 

This  is  another  matter  in  which,  according  to  my  humble 
opinion,  serious  reform  is  required.  My  reasons  were  fully 
given  in  the  following  memorandum,  which  I  sent  on 
October  31, 1876,  to  the  principal  members  of  both  Houses 
of  Parliament  and  the  Chambers  of  Commerce  in  this 
country  and  the  colonies  : — 

Towards  the  close  of  the  last  Session  of  Parliament,  the  Legisla- 
ture passed,  in  the  39  &  40  Vict.  cap.  59,  an  Act  which,  by  effecting 
a  radical  change  in  the  hearing  of  appeals  in  Admiralty  causes, 
affects  the  general  maritime  interests  of  this  and  many  other 
countries  most  injuriously. 

The  change  complained  of  is  this  :  Hitherto  in  causes  brought 
before  the  Admiralty  tribunal  in  England,  one  appeal  only  has  been 
thought  necessary,  and  one  appeal  only  has  there  been,  but  now  by 
this  Act  it  is  enacted,  for  what  reasons  it  is  hard  to  say,  that  hence- 
forward there  shall  be,  in  addition  to  the  existi'ng  appeal,  a  second 
one,  viz.  to  the  House  of  Lords,  quite  unnecessary  for  the  perform- 
ance of  justice  in  those  causes,  and  unasked  for  by  all  those 
most  interested  in  having  justice  performed  therein. 

Representing  in  this  country  the  principal  foreign  underwritino- 
bodies  in  the  world,  and  perceiving  at  once  how  their  interest 
would  be  prejudiced  by  this  unfortunate  innovation,  I  addressed  a 
letter,  on  August  29  last,  to  the  Lord  Chancellor,  calling  the  atten- 
tion of  his  Lordship  to  the  following  facts  and  reasons  to  which  it 
is  now  my  wish  to  draw  more  general  attention,  namely — 

That  at  no  time,  either  when  the  appeals  in  maritime  causes 
went  in  accordance  with  the  Act  25  Hen.  VIH.  cap.  19,  to  the 


682  MARITIME    LEGISLATION. 

High  Court  of  Delegates,  or  in  accordance  with  the  Act  2  &  3 
Will.  IV.  cap.  92,  to  His  Majesty  in  Council,  or  in  accordance  with 
the  Act  3  &  4  Will.  IV.  cap.  4J,  to  the  Judicial  Committee  of  the 
Privy  Council,  at  no  time  when  the  final  appeal  lay  to  any  one  of 
these  varied  tribunals  had  it  been  considered  or  even  suggested 
that  a  second  appeal  was  necessary  or  even  might  be  beneficial ; 

That  the  fact  that  this  was  the  case  until  the  passing  of  36  & 
37  Vict.  cap.  66^  was  a  strong  proof  of  the  adequacy  and  efficiency 
of  the  single  appeal  in  such  causes,  and  the  absence  of  any  wish 
on  the  part  of  the  suitors  to  have  any  second  appeal ; 

That,  as  a  matter  of  fact,  the  suitors  in  Admiralty  causes  did 
not  want  any  alteration  in  the  procedure  so  far  as  concerns  appeals 
therefrom,  and  were,  on  the  contrary,  much  opposed  to  any  second 
appeal ; 

That  the  very  Act — the  one  already  referred  to — which  first 
clearly  throws  this  burden  on  the  suitors  in  Admiralty  causes, 
excepts,  in  its  12th  section,  all  causes  in  the  Courts  of  Ireland  and 
Scotland  from  liability  to  review  by  the  House  of  Lords  which  had 
not  been  liable  to  it  before  ; 

That  it  is,  therefore,  an  act  of  great  hardship  on  the  part  of  the 
British  Legislature  to  the  suitors  in  Admiralty  causes  in  England 
to  place  them  not  only  in  a  worse  position  than  they  have  been  for 
centuries  past,  but  also  in  a  worse  position  than  that  so  reserved  to 
suitors  in  the  Courts  of  Ireland  and  Scotland ; 

That  the  foreign  underwriters,  whose  representative  I  am,  were 
all  most  anxious,  and  that  I  was  confident  the  maritime  constitu- 
encies of  this  country  were  so  also,  to  be  freed  from  this  most 
expensive,  unnecessary,  and  cumbersome  innovation ; 

And  I,  finally,  prayed  his  Lordship  to  consider  the  necessity  of 
obtaining  the  passing  of  an  Amendment  Act  to  reinstate  the  pro- 
cedure of  Admiralty  causes  on  appeal  into  the  same  position  as 
before  the  passing  of  38  &  39  Vict.  c.  77. 

The  answer  I  received  to  my  communication  was  as  follows  : — 

'  5  Cromwell  Houses,  S.W. :  September  7,  187C. 
'  Sir, — -I  am   directed   by  the   Lord  Chancellor  to  acknowledge 
the  receipt    uf  your   letter   of  tlu;  2*Jth   ult.   upon   the   subject  of 
"Appellate  Jurisdiction  in  .Maritime  Causes." 


APPELLATE   JUPJSDICTION   IN   MARITIME    CAUSES.       G83 

'I  am,  in  reply,  to  iufonu  you  that  the  jurisdiction  in  Ad- 
miralty having,  Ly  llie  Judicature  Act  of  1873,  been  made  a 
part  of  the  general  jurisdiction  of  the  High  Court  of  Justice,  the 
procedure  of  ap])eal  is  now  tlie  same  in  Admiralty  as  in  other 
causes. 

'  I  am,  Sir,  your  obedient  Servant, 

(Signed)         '  IIenuy  J.  L.  Graham, 

'  Principal  Secretary.' 

Now,  it  nmy  be  asserted  that  the  right  of  appeal  to  the  House 
of  Lords  is  not  a  burden  but  a  privilege.  It  may  be  so  in  some 
cases  and  to  some  extent ;  but  it  is  a  burden  none  the  less  still 
more  frequently  and  to  a  much  greater  extent.  The  greatest 
privilege  suitors  can  have  is  for  their  cases  to  be  settled  as  justly 
as  possible,  but,  above  all  things,  with  the  least  possible  loss  of 
time  and  money.  Every  extra  and  unnecessary  appeal  causes 
direct  loss  both  of  time  and  money  to  the  suitors,  and  is  therefore 
a  burden  to  them  ;  and  in  this  case,  where  the  appeal  under  dis- 
cussion is  to  the  House  of  Lords,  and  therefore  both  costly  and 
tedious,  the  burden  is  very  heavy  indeed. 

It  must  be  remembered  that  the  tendency  of  recent  legislation 
has  been  to  limit  the  liability  of  shipowners ;  and  the  accretion  of 
costs  will  not  in  any  way  increase  the  extent  of  the  remedy  to  be 
obtained  by  litigation. 

It  is  tvident,  therefore,  that  these  who  are  obliged  to  become 
suitors  in  the  Admiialty  Division  of  the  High  Court  of  Justice  of 
England  have  two  serious  grounds  of  complaint : 

Firstly  :  That  they  have  become  burdened  with  the  great  ex- 
penses and  delays  of  an  unnecessary  second  appeal,  to  the  House 
of  Lords,  although  during  the  centuries  in  wliit-li  thry  liave  had 
the  one  single  appeal  they  have  never  desired,  and  they  do  not  now 
desire,  any  second  a])peal. 

Secondly  :  That  they  have  leen  so  burdened  while  such  suitors 
as  in  the  Courts  of  Ireland  and  Scotland  enjoyed  the  privilege  of 
being  exempt  from  the  appeal  to  the  House  of  Lords  have  con- 
tinued to  retain  their  privilege. 

It  is  not  maintained  that  any  advantage  accrues  to  anyone  by 


684  MARITIME   LEGISLATION, 

the  creation  of  this  grievance ;  but  the  only  reason  which  is  and 
can  be  assigned  for  it  is  the  asserted  desirability  of  a  uniformity 
of  practice  between  the  Admiralty  Division  and  the  other  Divisions 
of  the  High  Court  of  Justice. 

It  is  for  this  utterly  inadequate  reason,  then,  that  while  every 
enli'srhtened  Government  is  doing  its  best  to  lessen  the  burdens 
which  are  the  inseparable,  or  rather  the  natural  consequences  of 
commerce  and  trade,  a  burden  so  heavy  is  laid  on  two  of  the  prin- 
cipal handmaids  of  commerce  and  trade — the  Shipping  and  the 
Underwriting  interests. 

In  consequence  of  this  memorandum  numerous  com- 
munications have  been  addressed  to  me,  expressing  ap- 
proval and  gratitude  for  my  ventilating  this  subject  and 
putting  it  in  its  proper  light,  but  the  status  quo  has  not 
been  altered  and  the  grievance  remains. 


APPENDIX. 


APPENDIX. 


GEiaiAN  GENERAL  MERCANTILE  LAW/ 


FIFTH  BOOK. 
CONCEENING  MARITIME  COMMERCE. 


FIRST   PART. 

General  Provisions. 

Art.  432.  A  Register  is  to  be  kept  of  all  vessels  intended  for  profit 
by  means  of  sea  voyages,  and  entitled  to  carry  the  counti-y's  flag. 

The  Register  is  public,  its  inspection  being  permitted  to  everybody 
during  the  ordinary  office  hours. 

Art.  433.  An  entry  in  the  Register  can  only  be  made  after  the 
right  of  carrying  the  country's  flag  has  been  estal)lished. 

Before  entry  in  the  Register  the  riglit  of  carrying  the  country's 
flag  cannot  be  exercised. 

Art.  434.  The  laws  of  the  various  countries  point  out  tlie  require- 
ments upon  which  the  right  of  a  vessel  to  carry  the  country's  flag 
depends. 

They  appoint  the  authorities  which  have  to  keep  the  Register  of 
shipping. 

They  decide  whether,  and  under  what  conditions,  the  entry  in  the 

'  By  the  law  respecting  the  constitution  of  the  German  Emi^ire  of  April  16, 
1871,  and  the  law  respecting  the  introduction  of  the  North  German  Confederation 
Laws  into  Bavaria  of  April  22,  1871,  the  German  General  Mercantile  Law  Code 
obtained  authority  in  the  whole  domain  of  the  German  Empire  as  the  law  of  the 
Empire  -with  the  modification  that  where  it  mentions  the  North  German  Confede- 
ration, its  constitution,  borders,  members  or  states,  constitutional  organisation, 
officials,  flags,  &c.,  the  German  Empire  and  its  corresponding  applications  must 
be  understood. 


688  MARITIME   LEGISLATION. 

Register  of  shipping  of  a  vessel  acquired  from  a  foreign  country  may- 
be provisionally  replaced  by  a  consular  document. 

Art.  435.   The  entry  in  the  Register  shall  contain — 

(1)  The  facts  on  wliich  the  riglit  of  the  vessel  to  carry  the  coun- 

try's flag  is  based. 

(2)  The  facts  required  for  establishing  the  identity  of  the  ship,  and 

all  matters  concerning  its  ownership. 

(3)  The  sea-port  from  which  the  vessel  is  intended  to  hail.    (Home 

port.     Port  of  Registry.) 

A  document  (certificate)  identical  with  the  entry  is  to  be  granted. 

Art.  436.  If  subsequently  to  the  entry  changes  occur  in  the  facts 
referred  to  in  the  foregoing  paragraphs,  they  must  be  entered  in  the 
Register  of  shipping  and  stated  on  the  certificate. 

In  case  of  the  vessel  being  lost,  or  forfeiting  the  right  of  carrying 
the  country's  flag,  the  vessel  is  to  be  struck  off  the  Register  of  shipping 
and  the  certificate  has  to  be  returned,  unless  it  be  credibly  attested 
that  it  cannot  be  returned. 

Art.  437.  The  laws  of  the  various  countries  determine  the  space  of 
time  within  which  the  facts  necessitating  an  entry  or  a  cancellation  are 
to  be  notified  or  pi'oved,  and  also  the  penalties  which  ai'e  entailed  by 
neglect  of  these  respites,  or  l:)y  non-compliance  with  the  foregoing  pro- 
visions. 

Art.  438.'  Tlie  laws  of  the  various  countries  may  determine  tliat 
the  provisions  of  Articles  432  to  437  sliall  not  apply  to  smaller  vessels 
(such  as  coasters,  &c.).2 

Art.  439.  If  a  ship  or  a  shai'e  therein  (ship's-part)  be  sold,  the 
transfer  required  according  to  tlie  principles  of  the  common  law,  if 
any,  may  for  the  purpose  of  acquiring  a  title  to  the  property,  be 
dispensed  with  by  agreement  between  the  contracting  parties  to  the 
effect  tliat  the  title  to  the  property  shall  immediately  pass  to  the 
purchaser. 

Art.  440.  In  all  cases  of  the  sale  of  a  vessel,  or  of  a  share  therein 
each  of  the  parties  has  a  right  to  demand  that  a  certified  document 
respecting  the  sale  should  be  given  to  him  at  his  expense. 

Art.  44L  If  a  ship,  or  a  share  therein,  be  sold  while  the  ship  is 
engaged  on  a  voyage,  it  shall,  as  regards  the  relative  positions  of 
vendor  and  purchaser,  in  default  of  an  agreement  to  tlie  contrary,  be 


'  Arts.  4.32-4.38  have  lost  their  practical  application,  owing  to  the  law  respecting 
the  nationality  of  merchant  vessels  and  their  right  to  carry  the  flag  of  the  Con- 
federation of  October  25,  18G7.  This  law  applies  to  the  whole  German  Empire, 
and  a  translation  of  it  will  be  found  on  p.  81.3. 

-  Sec  translation  of  the  Law  of  May  22,  1881,  p.  H17. 


APPENDIX.  G89 

presumed  that  the  purchaser  is  entitled  to  the  profits  of  the  current 
voyage,  or  responsible  for  the  loss  incurred  therein. 

Art.  442.  The  personal  liabilities  of  the  vendor  towards  third  parties 
are  in  no  way  altered  by  the  sale  of  a  ship  or  a  share  therein. 

Art.  443.  All  articles  intended  for  the  permanent  use  of  the  ship 
during  its  navigation  are  considered  to  be  appurtenances  of  the  ship. 

Ships'  boats  more  particularly  belong  thereto. 

In  doubtful  cases  all  articles  entered  upon  the  Ship's  Inventory  are 
considered  to  be  appurtenances  of  the  ship. 

Art.  444.  For  the  purpose  of  this  fifth  book  a  sliip  that  has  become 
unseaworthy  is  considered  to  be — 

(1)  Incapable  of  repair,  when  the  repair  is  altogether  impossible, 

or  cannot  be  done  at  the  place  where  the  ship  is,  and  the 
ship  cannot  be  moved  to  a  port  where  the  repairs  might  be 
carried  out. 

(2)  Unworthy   of  repair,    when   the   cost   of    the    repair   without 

deduction  on  account  of  the  difference  between  old  and  new 
would  amount  to  more  than  three-fourths  of  the  previous 
value. 

When  a  vessel  has  become  unseaworthy  in  the  course  of  a  voyage 
its  previous  value  is  to  be  taken  as  that  which  the  ship  was  worth  at 
the  commencement  of  the  voyage  ;  in  all  other  cases,  as  that  which 
the  ship  l)efore  she  became  unseaworthy  was  worth,  or  would  with  a 
proper  outfit  have  been  worth. 

Art.  44.5.  In  the  ship's  crew  are  included  the  mastei*,  the  seamen, 
and  all  other  persons  appointed  to  duties  on  boai'd  a  ship. 

Art.  446.  A  ship  ready  to  sail  cannot  be  arrested  for  debts.  This 
provision,  however,  does  not  apply  to  debts  contracted  for  purposes  of 
the  intended  voyage. 

An  attachment  for  debts  of  goods  already  laden  on  board  a  ship 
authorises  their  relanding  only  in  such  cases  in  which  the  shipper  him- 
self would  be  entitled  to  demand  it,  and  only  upon  compliance  with  all 
obligations  which  the  latter  would  at  the  time  have  to  fulfil. 

From  the  time  of  the  ship  being  ready  to  sail  a  person  belonging  to 
the  crew  cannot  be  arrested  for  deV)ts. 

Art.  447.  When  in  this  fifth  book  a  distinction  is  made  between 
European  and  non-European  ports,  then  the  non-European  ports  of  the 
Mediterranean,  the  Black  Sea,  and  the  Sea  of  Azoff  are  to  be  con- 
sidered as  likewise  belonging  to  the  former  category. 

Art.  448.  The  provisions  of  this  fifth  book,  which  refer  to  the  stay 
of  a  vessel  in  the  port  of  registry,  can  by  the  legislation  of  the  vniious 

V  Y 


690  MARITIME   LEGISLATION. 

countries  be  extended  to  all  or  any  ports  situated  in  the  same  water  as 
the  port  of  registry. 

Art.  449.  The  provisions  of  this  fifth  book  apply  to  the  postal 
establishments  only  so  far  as  special  laws  or  enactments  do  not  lay 
dovra  other  regulations  respecting  them. 


SECOND  PART. 

Concerning  the  Owner  mul  Joint  Ownership. 

Art.  450.  A  shipowner  is  the  proprietor  of  a  vessel  used  by  him  for 
the  purpose  of  making  a  profit  by  navigation. 

Art.  45L  The  owner  is  answerable  for  any  damage  occasioned  to  a 
third  party  by  the  fault  of  any  of  the  crew  in  the  performance  of  their 
duties. 

Art.  452.  The  owner  is,  however,  not  personally  liable  for  the  claim 
of  a  tliird  party,  but  is  only  answerable  to  the  extent  of  ship  and 
freight  — 

(1)  When  the  claim  is    made  on   account  of    a    legal  transaction, 

concluded  by  the  master  as  such,  in  virtue  of  the  authority 
he  lawfully  possesses,  and  not  in  consequence  of  an  especial 
power  of  attorney. 

(2)  When  the  claim  is  occasioned  by  the  non-performance,  or  the 

incomplete  or  improper  performance,  of  any  ai-rangement 
made  by  the  owner,  as  far  as  the  carrying  out  of  such 
arrangement  belonged  to  the  legitimate  duties  of  the  master, 
no  matter  whether  the  non-performance  or  the  incomplete 
or  improper  performance  was  caused  through  the  fault  of 
anybody  belonging  to  the  crew  or  not. 

(3)  When  the  claim   has  ai-isen  through   the  fault  of  one  of  the 

crew. 

This  section  does  not,  however,  apply  to  the  cases  stated  under 
Nos.  1  and  2,  if  any  neglect  in  the  performance  of  tlie  arrangement  is 
attributable  to  the  fault  of  the  owner  himself,  or  if  he  has  especially 
guaranteed  the  fulfilment  of  the  arrangement. 

Art.  453.'     The  OAvner   is  answerable   for   the    claims  of   persons 

'  By  §  08  of  the  law  regarding  ships'  masters  and  seamen  of  December  27, 
1872  (vide  translation,  p.  7'JO),  Art.  453  has  been  altered  and  reads  as  follows  :— 

'  The  owner  is  answerable  not  only  to  the  extent  of  ship  and  freight  but  also 
personally  for  claims  of  the  master  or  any  member  of  the  crew  arising  out  of  con- 
tracts respecting  their  services  and  wages.' 

The  remainder  of  Art.  453  is  repealed. 


APPENDIX.  091 

belonging  to  the  crew,  and  arising  out  of  contracts  respecting  their 
services  and  wages,  not  only  to  the  extent  of  ship  and  freight,  but  at 
the  same  time  personally. 

If,  however,  the  ship  be  lost  to  the  owner,  without  his  fault  before 
the  termination  of  the  voyage,  more  especially 
if  it  be  lost  by  accident, 

if  it  have  been  condemned  as  incapable  or  unworthy  of  repairs 
(Art.  444),  and  if,  in  the  latter  case,  it  be  sold  without  delay 
V)y  public  auction, 
if  it  be  captured  by  pirates, 

if  it  be  seized  or  detained,  and  condemned  as  good  prize,  the 
owner  is  not  personally  liable  for  claims  arising  out  of  the  unfinished 
voyage,  or,  when  the  latter  consists  of  several  subdivisions,  for  claims 
resulting  out  of  the  last  portion  of  the  voyage. 

The  last  portion  of  the  voyage  commences  in  the  port  in  which  the 
ship  has  last  taken  in  or  discharged  cargo,  and  from  the  time  at  which 
the  loading  commenced  or  the  discharging  finished.  A  port  of  distress 
is  not  considered  to  be  a  loading  or  discharging  port  within  the  meaning 
of  this  clause. 

In  none  of  tlie  aforesaid  cases  is  the  owner  entitled  to  recover 
bounties  or  advances  previously  paid. 

Art.  454,  The  remaining  cases  in  which  the  owner  is  responsible, 
not  personally,  but  only  to  the  extent  of  ship  and  freight,  are  stated 
in  the  following  parts. 

Art.  455.  The  owner,  as  such,  may  be  sued  before  the  court  of  the 
port  of  registry  on  account  of  every  claim  whatsoever,  irrespective  of 
the  question  whether  he  is  personally  responsible  or  only  to  the  extent 
of  ship  and  freight  (Art.  435). 

Art.  456.  A  joint-ownership  exists  if  a  vessel  belonging  jointly  to 
more  than  one  person  be  employed  by  them  for  the  purposes  of  profit 
by  means  of  navigation. 

The  regulations  respecting  joint-ownership  do  not  apply  to  the  case 
of  a  vessel  belonging  to  a  trading  company. 

Art.  457.  The  legal  relations  of  the  co-owners  to  each  other  are 
regulated  in  the  first  instance  by  the  agreement  made  between  them. 
Where  no  agreement  has  been  entered  into,  the  provisions  of  the 
following  paragraphs  are  to  be  applied. 

Art.  458.  The  resolutions  of  the  co-owners  ai-e  binding  with  regard 
to  the  affairs  of  the  ownership. 

Resolutions  are  passed  by  a  majority  of  votes.  The  votes  are 
counted  according  to  the  number  of  shares  held.      A  majority  of  votes 


692  MARITIME    LFGTSLATION. 

in  favour  of  a  resolution  exists  if  the  person  or  persons  who  have  voted 
for  such  resolution  hold  together  nioi-e  than  a  moiety  of  the  entire  vessel. 
The  unanimous  consent  of  all  co-owners  is  refjuisite  for  the  adoption 
of  resolutions  intended  to  alter  the  agreement  of  ownership,  or  which 
are  contrarv  to  the  stipulations  of  such  agreement  or  foreign  to  the 
objects  of  the  ownership. 

Art.  459.  By  resolution  of  a  majority  a  managing  owner  (ship's 
husband,  representative  owner)  may  be  appointed  to  carry  on  the 
business  of  the  ownership.  An  unanimous  vote  is  required  in  favour 
of  a  resolution  appointing  a  managing  owner,  who  is  not  himself  one 
of  the  part-owners. 

The  appointment  of  a  managing  owner  may  be  revoked  at  any  time 
oy  a  majority  of  votes,  without  prejudice,  however,  to  any  claims  for 
compensation  arising  out  of  existing  agreements. 

Ai~t.  460.  By  virtue  of  his  appointment  the  managing  owner  is 
empowered  to  carry  out  all  business  arrangements  and  legal  acts  as 
against  third  parties,  which  the  management  of  a  joint-ownership 
ordinarily  requires. 

This  power  extends  more  particularly  to  the  fitting  out,  maintaining, 
and  chartering  the  ship  ;  to  the  insurance  of  the  fi-eight,  the  cost  of 
outfit  and  the  outlay  necessitated  by  cases  of  average  ;  and  to  the 
receiving  of  money  in  the  ordinary  course  of  business. 

The  managing  owner  is  to  the  same  extent  authorised  to  represent 
the  joint-owners  before  legal  tribunals. 

He  is  empowered  to  appoint  and  to  discharge  the  master  ;  the  master 
has  to  obey  only  his  instructions,  and  not  the  instructions,  if  any, 
which  he  may  have  received  from  any  of  the  part-owners. 

The  managing  owner  is,  however,  not  authorised  in  the  name  of  the 
joint-ownership,  or  of  any  part-owner  or  owners,  to  enter  into  obliga- 
tions upon  bills  of  exchange,  nor  to  contract  loans,  to  sell  or  mortgage 
the  ship  or  shares  therein,  nor  to  insure  them,  unless  a  special  power  of 
attorney  be  given  to  him  for  such  purpose. 

In  other  respects,  the  special  power  of  attorney,  if  any,  required 
by  the  legislation  of  the  vainous  countries,  is  not  necessary  for  those 
Ijusiness  and  legal  acts  which  by  virtue  of  his  aj^pointment  he  is 
authorised  to  carry  out. 

Art.  461.  Any  legal  act  which  the  managing  owner  as  such  may 
liave  concluded  within  the  limits  of  his  authority,  binds  and  entitles 
the  joint-owners  as  against  tliiid  ])a,i-tips,  even  wlicii  the  act  has  been 
effected  without  giving  the  names  of  the  various  jiai-t-owners. 

In  ca.se  of  responsibility  incurred  by  the  joint-ownoi-s  in  consequence 
of  a  business  niattei- concliHlcd  l>y  the  niiuuiging  (iwiicr,  tlie  ])art-()wnei-s 


Al>Pi:XI)IX.  093 

are  responsible  to  the  same  extent  (Art,  452)  as  if  the  transaction  had 
been  entered  into  by  themselves. 

Art.  462.  A  limitation  of  the  powers  of  the  manaj^^ing  owner,  as 
stated  in  Art.  460,  can  only  be  pleaded  by  the  joint-owners  against 
a  tliird  i)arty,  so  far  as  they  ;ire  in  a  position  to  prove  that  such  limita- 
tion was  known  to  such  tliird  party  at  tlie  time  when  tlie  transaction 
was  concluded. 

Art.  463.  As  far  as  the  joint-owners  are  concerned,  the  managing 
owner  is  Itound  to  act  within  the  limitations  which  have  been  stipulated 
by  them  as  the  extent  of  his  powers  ;  he  has  also  to  be  guided  by  the 
resolutions  passed,  and  to  carry  the  same  into  effect. 

In  other  respects  the  extent  of  his  jiowers,  even  as  against  the 
joint  owners,  is  to  be  considered  in  accordance  with  the  provisions  of 
Ai't.  460,  with  this  modification,  that  for  new  voyages  or  undertakings, 
extraordinary  repairs,  as  well  as  for  the  appointment  or  discharge 
of  the  master,  the  consent  of  the  joint-owners  must  previously  be 
obtained. 

Art.  464.  The  managing  owner  is  bound  to  apply  the  attention  of  a 
careful  owner  to  the  affairs  of  the  joint-ownership. 

Art.  465.  The  managing  owner  shall  keep  separate  accounts  re- 
specting his  management  of  the  affairs  of  the  joint-ownership  and  shall 
preserve  the  vouchers  relating  thereto.  He  shall,  on  demand,  give  to 
each  part-owner  information  of  all  matters  connected  with  the  joint- 
ownership,  more  particularly  respecting  ship,  voyage,  and  outfit ;  he 
is  bound  to  allow  him  at  all  times  to  inspect  the  books,  letters, 
and  papers  which  have  reference  to  the  affairs  of  the  joint-owner- 
ship. 

Art.  466.  The  managing  owner  shall  at  all  times,  when  called  upon 
by  a  resolution  of  the  joint-owners,  produce  to  them  a  balance-sheet. 
The  adoption  of  the  balance-sheet  and  the  approval  of  the  management 
of  the  managing  owner  by  the  majority  does  not  prevent  a  majority 
from  enforcing  their  rights. 

Art.  467.  Every  co-owner  shall  contribute  to  the  expenses  of  the 
ownership,  more  especially  to  the  expenses  of  the  outfit  and  the  repairs 
of  the  vessel,  in  proportion  to  the  amount  of  his  share. 

When  a  part-owner  is  in  arrear  of  contributions,  and  when  the 
money  has  been  advanced  by  co-owners  on  his  account,  he  is  by  law 
bound  to  pay  them  interest  from  the  time  the  advances  have  been 
made.  The  laws  of  the  various  countries  decide  whether  a  mortgage- 
lien  is  established  by  such  advances  upon  the  shai*e  of  tlie  part-owner 
in  arrear.  Should  a  mortgage-lien  not  be  so  acquired,  the  advances 
made  give  the  co-owners  an  insurable  interest  in  the  share  in  question. 


004  MAR ITI M E   L I:GISL ATION . 

Ill  case  this  interest  should  have  been  insured,  the  part-owner  in  arrear 
is  bound  to  repay  the  expenses  of  such  insurance. 

Art.  468.  If  it  lias  been  decided  to  commence  a  new  voyage,  or 
after  the  termination  of  a  voyage  to  repair  the  vessel,  or  to  pay  off  a 
creditor,  to  whom  the  ownership  is  only  liable  to  the  extent  of  ship  and 
frei<Tht,  every  part-owner  who  has  not  assented  to  the  resolution  may 
exonerate  himself  from  making  the  payments  necessary  to  carry  out 
such  resolution  by  giving  up  his  share  without  claim  to  indemnili- 
cation. 

The  part-owner  intending  to  exercise  this  right  shall  be  bound  to 
give  judicial  or  notarial  notice  of  such  intention  to  the  part-owners  or 
the  managing  owner  within  three  days  from  the  date  of  the  passing  of 
the  resolution,  or,  in  case  he  was  not  present  pei'sonally  or  by  proxy  at 
the  passing  of  tlie  resolution,  then  within  three  days  of  the  time  that 
the  resolution  shall  have  been  communicated  to  him. 

The  share  thus  given  up  becomes  the  property  of  the  remaining 
co-owners  in  proportion  to  the  amount  of  their  several  shares. 

Art.  469.  The  distribution  of  profits  and  losses  is  made  in  proportion 
to  the  amount  of  the  shares. 

The  calculation  of  profits  and  losses  and  the  distribution  of  the 
profits,  if  any,  take  place  every  time  that  the  vessel  returns  to  the 
port  of  registry,  or  whenever  it  has  completed  its  voyage  in  another 
port,  and  the  crew  has  been  discharged. 

Monies  coming  in  before  the  time  mentioned,  as  far  as  they  are  not 
wanted  for  future  expenses,  or  for  satisfying  claims  of  single  part- 
owners  against  the  joint-ownership,  shall  also  be  distributed  and  paid 
ncl  interim  to  the  several  part-owners  in  proportion  to  the  amount  of 
their  shares. 

Art.  470.  Every  jiart-owner  is  at  liberty  to  sell  his  share  at  any 
time,  either  wholly  or  in  part,  without  the  consent  of  the  other  part- 
own<?rs. 

The  co-owners  have  no  legal  right  to  priority  of  purchase.  The 
sale,  however,  of  a  share  whereby  the  A'essel  would  lose  its  right  to 
carry  the  country's  flag  can  only  be  legally  made  with  the  consent  of 
all  co-owners.  Those  laws  of  the  various  countries  which  altogether 
prohibit  such  a  sale  shall  not  be  affected  by  this  provision. 

Art.  471.  The  part-owner  who  has  sold  his  share  is,  as  regards  his 
connection  with  the  co-owners,  considered  to  be  a  part-owner  until  he 
and  the  purchaser  have  notified  such  sale  to  the  other  part-owners  or 
to  the  managing  owner,  and  continues  liable  as  part-owner  to  the  other 
part-owners  with  respect  to  all  obligations  contracted  previously  to  such 
notification. 


APPICNDIX.  695 

The  purchaser  of  the  share,  however,  is,  as  far  as  the  other  part- 
owners  are  concernefl,  already  liable  from  the  moment  of  such  acquisi- 
tion. He,  like  the  vendor,  is  bound,  by  the  stipulations  of  the  agree- 
ment of  ownership,  by  the  resolutions  passed  and  by  the  transactions 
already  entered  into  ;  the  other  part-owners  are  besides  at  liberty  to 
enforce  against  the  purchaser  the  fulfilment  of  all  liabilities  attaching 
upon  the  vendor  with  regard  to  the  share  in  question,  the  purchaser's 
right  to  recover  against  the  vendor  being  in  no  way  affected  thereby. 

Art.  472.  A  change  among  the  part  owners  does  not  atfect  the  con- 
tinuance of  the  joint-ownership. 

When  a  part-owner  dies  or  becomes  bankrupt,  or  legally  incapable 
of  managing  his  property,  the  ownership  is  not  thereby  dissolved. 

Notice  of  withdrawal  on  the  part  of  a  part-owner  or  exclusion  of  a 
part-owner  are  inadmissible. 

Art.  473.  A  dissolution  of  the  joint-ownership  may  be  resolved 
upon  by  a  majority.  A  resolution  to  sell  the  vessel  is  to  be  considered 
as  a  resolution  to  dissolve  the  ownership. 

If  it  has  been  decided  to  dissolve  the  joint-ownership  or  to  sell  the 
vessel,  the  sale  of  the  vessel  must  take  place  by  public  auction.  The 
sale  shall  only  take  place  when  the  vessel  is  not  chartered  for  a  voyage, 
and  when  it  is  in  the  port  of  registry  or  a  home  port. 

If,  however,  the  vessel  has  been  condemned  as  incapable  or  unworthy 
of  repair  (Art.  444),  it  may  be  sold  although  under  charter,  or  even  in 
a  foreign  port.  The  consent  of  all  part-owners  is  required  if  a  devia- 
tion from  the  foregoing  regulations  be  contemplated. 

Art.  474.  As  regards  their  personal  obligation  to  third  parties,  the 
part-owners  as  such  are  liable  only  in  prof)ortion  to  the  amount  of  their 
shares. 

In  case  a  share  in  a  ship  is  sold,  both  vendor  and  purchaser  are 
liable  with  respect  to  the  personal  obligations  conti-acted  for  such  share 
during  the  period  from  the  sale  to  tlie  notification  mentioned  in 
Art.  471. 

Art.  Hi).  The  pai't-owners  as  such  may  be  sued  befoi'e  tlie  court  of 
the  port  of  registry  (Art.  435)  for  every  claim,  no  matter  whether 
made  by  a  part-owner  or  by  a  third  party. 

This  provision  applies  also  to  such  cases  in  which  an  action  is 
entered  only  against  one  part-owner  or  against  some  of  the  part- 
owners. 

Art.  476.  If  two  or  more  persons  agree  to  build  a  vessel  for  their 
joint  account  and  to  use  the  same  for  the  purposes  of  navigation,  then 
Articles  457,  458,  467  are  to  be  applied,  the  latter  with  the  modifica- 
tion that  it  has  to  include  the  building  expenses,  also  Articles  472  and 


(96  MARITIME   LEGISLATION. 

47-i,  and,  as  soon  as  tlie  vessel  has  been  finished  and  handed  ovei'  Ly 
the  builder,  Articles  470,  471  and  473  likewise  api^ly. 

The  managing  owner  (Art.  459)  may  also  be  appointed  before  the 
vessel  has  been  finished  ;  in  this  case  he  assumes  from  the  time  of  his 
appointment  all  rights  and  duties  of  a  managing  owner  with  respect  to 
the  further  management  of  the  affairs  of  the  joint-ownership. 

Art.  477.  Whoever  employs  for  his  account  a  vessel  not  belonging  to 
himself  with  the  \new  of  profit  by  means  of  navigation,  and  either  com- 
mands the  same  liimself  or  entrusts  the  command  to  a  master,  is  as 
against  third  parties  considered  to  be  the  owner. 

The  actual  owner  cannot  prevent  anybody  who  brings  forward  a 
claim  as  ship-creditor,  arising  out  of  such  employment,  from  enforcing 
his  claim  unless  he  is  in  a  position  to  prove  that  such  employment  was 
illegal  with  regard  to  himself,  and  that  the  creditor  has  not  acted  in  good 
faith. 


THIRD   PART. 

Concerning  the  Master, 


Art.  478.  The  commander  of  a  vessel  (ship  captain,  master)  shall 
exercise  the  care  of  a  properly  qualified  master  in  all  matters  connected 
with  his  duties,  but  more  especially  in  the  fulfilment  of  contracts  to  be 
executed  by  him.  He  is  liable  for  every  damage  occasioned  by  his  fault, 
particularly  for  the  damage  originating  in  the  violation  of  the  duties 
imposed  upon  him  by  this  and  the  following  articles. 

Art.  479.  This  liability  of  the  master  exists  not  only  towards  the 
owner  but  also  towards  the  charterer,  shipper  and  receiver  of  cargo,  the 
passengers,  crew,  and  those  creditors  of  the  vessel  whose  claims  arise 
out  of  a  credit  transaction  (Art.  497),  more  especially  the  bottomry- 
creditor. 

The  master  is  not  exonerated  from  liability  as  regards  the  other 
before-mentioned  persons  by  having  acted  according  to  instruction  of 
the  owner. 

By  such  instruction,  the  owner  becomes  also  personally  liable  if  he 
was  acquainted  with  the  position  of  affairs  at  the  time  the  instruction 
was  given. 

Art.  480.  The  master,  before  entering  upon  a  voyage,  has  to  take 
care  that  the  vessel  is  in  a  seaworthy  condition,  properly  furnished  and 
fitted  out,  properly  manned  and  provisioned,  and  that  the  papers  i-e- 
f|uired  as  pi'oofs  of  identity  for  ship,  crew,  and  cargo  are  on  board. 

A  rl.  1 H 1 .  The  master  is  responsible  for  the  condition  of  the  gear  used 
for  loading  and  discharging,  as  well  as  for  proper  stowage  according  to 


APPENDIX.  r,<)7 

seaman's  custom,  notwitlistaiidiiii;'  (liat  tlie  stowage  may  be  performed 
by  special  stevedores.  He  lias  to  take  care  that  the  vessel  is  not  over- 
loaded, and  that  it  is  provided  with  the  necessary  ballast  and  the 
requisite  dunnage. 

Art.  482.  If  the  master  when  in  a  foreign  country  does  not  comply 
with  the  legal  provisions  tliere  in  force,  more  especially  respecting  police, 
customs,  and  revenue  regulations,  he  shall  make  good  the  damage 
thereby  occasioned.  In  like  manner,  he  shall  make  good  any  damage 
resulting  from  his  taking  in  goods  which  he  knew  or  ought  to  have 
known  to  be  contraband  of  war. 

Art.  483.  As  soon  as  the  sliip  is  ready  to  sail  the  master  sliall  com- 
mence the  voyage  at  the  first  favourable  opportunity. 

Even  if  illness  or  other  causes  sliould  prevent  him  from  commanding 
the  ship,  he  is  not  allowed  unduly  to  delay  its  departure  or  tlie  continu- 
ation of  its  voyage  ;  on  the  contrary,  he  shall,  if  time  and  circumstances 
permit,  apply  to  the  owner  for  instructions,  inform  him  without  delay 
of  the  impediment,  and  meanwhile  make  proper  arrangements  ;  other- 
wise he  shall  appoint  another  master.  He  is  only  responsible  for  the 
acts  of  such  substitute  in  so  far  as  he  may  have  been  guilty  of  careless- 
ness in  his  selection. 

A7't.  484.  From  the  commencement  of  taking  in  cargo  to  tlie  com- 
pletion of  the  discharge,  the  master  and  the  mate  shall  not  leave  the 
vessel  simultaneously  except  in  urgent  cases  ;  in  such  an  event  the 
master  shall  previously  appoint  a  substitute  from  amongst  the  officers 
or  the  rest  of  the  crew  of  the  vessel. 

The  same  rule  applies,  before  the  commencement  of  loading  and  after 
.  the  completion  of  the  discharge,  if  the  vessel  is  in  an  unsafe  port  or  an 
insecure  roadstead. 

When  the  vessel  is  threatened  by  any  danger,  or  when  it  is  at  sea, 
the  master  must  be  on  board,  unless  urgent  necessity  should  justify  his 
absence. 

Art.  485.  Although  the  master,  in  case  of  danger,  may  consult  the 
officers  of  the  vessel,  he  is  nevertheless  not  bound  by  the  resolutions 
arrived  at  ;  he  remains  always  responsible  far  the  measures  taken  by 
him. 

Art.  486.  On  board  of  every  vessel  a  log-book  shall  be  kept,  in 
which,  during  every  voyage,  all  important  events  from  the  commence- 
ment of  taking  in  cargo  or  ballast  shall  be  entered. 

The  log-book  shall  be  kept,  under  the  supervision  of  the  master,  by 
the  mate,  and,  in  case  the  latter  should  be  prevented,  then  by  the  master 
himself,  or,  under  his  supervision,  liy  another  duly  qualified  member  of 
the  crew,  selected  by  him  for  this  purpose. 


G98  MAiail-ME   LEGISLATION. 

Art.  487.  Daily  entries  shall  be  made  in  the  log-book  respecting — 
The  state  of  wind  and  weather. 

The  courses  steered  by  the  vessel  and  the  distances  run. 
The  ascertained  latitude  and  longitude. 
The  state  of  water  at  the  pumps. 
In  the  log-book  shall  also  be  entered — 

The  depth  of  water  ascertained  by  heaving  the  lead. 

Every  employment  of  a  pilot  and   the  time  of  his  arrival  and 

departure. 
Any  changes  among  the  persons  composing  the  crew. 
The  resolutions  arrived  at  in  any  ship's  council. 
All  accidents  happening  to  ship  or  cargo,  together  with  a  de- 
scription thereof. 
Punishable   acts   committed,  and  the  disciplinary  punishments  in- 
flicted, as  also  births  and  deaths  occurring  on  board,  are  likewise  to  be 
entered  in  the  log-book. 

The  entries  shall,  so  far  as  circumstances  will  permit,  be  made 
daily. 

The  log-book  shall  be  signed  by  the  master  and  the  mate. 
Art  488.^  The  log-book  when  properly  kept  and  free  from  suspicion 
as  to  form  furnishes,  as  a  rule,  so  far  as  neither  an  extended  protest 
(Art.  490)  is  requisite,  nor  the  production  of  other  vouchers  customary, 
jn-iind  facie  evidence  respecting  the  occurrences  during  the  voyage, 
wliich  evidence  may  be  perfected  either  by  oath  or  other  evidence. 
The  judge,  however,  shall,  according  to  his  discretion  and  guided  by 
consideration  of  all  the  circumstances,  decide  whether  the  statements 
of  the  log-book  are  more  or  less  deserving  of  credibility. 

Art.  489.  The  laws  of  the  various  countries  may  determine  that  on 
board  smaller  vessels  (as  coasters,  &c.)  the  keeping  of  the  log-book  shall 
not  be  requisite. 

Art.  490.  The  master  shall,  in  conjunction  with  all  the  persons 
forming  the  crew  or  a  sufficient  number  thereof,  make  an  extended 
protest  respecting  all  accidents  happening  on  the  voyage,  no  matter 
whetlier  entailing  the  loss  or  damage  of  the  ship  or  cargo,  a  running 
into  a  port  of  distress,  or  other  injury. 

The  protest  shall  be  extended  without  delay,  and  more  especially — 

In  the  port  of  destination  or,  when  there  are  more  than  one  ports 

of  destination,  in   that  which  the  vessel  first  reaches  after  the 

accident. 

In  the  port   of  distress,  if   the   vessel   is    repaired    or    discharged 

therein. 

'  iiciR'alffl  by  j  i;3  of  the  Civil  I'roccss  llcgulutions,  d.  d.  .Januai}-  30,  1877. 


APPENDIX.  COO 

At  the  first   suitable   place,  if  the  voyage  tenniiuites  without  the 
port  of  destination  having  been  reached. 

If  the  master  has  died  or  become  incapable  to  extend  the  protest 
the  officer  next  in  rank  to  him  is  entitled  and  obliged  to  do  it. 

Art.  491.  The  extended  pi-otest  must  contain  a  repoi-t  of  all  impor- 
tant incidents  of  the  voyage,  and  in  particular  a  detailed  and  lucid 
narration  of  all  accidents  sustained,  together  with  a  statement  of  the 
means  adopted  to  avoid  or  lessen  the  damage. 

Art.  492.  Wherever  the  provisions  of  this  law  are  in  force  notice  of 
the  protest  shall  be  given  to  the  competent  court,  such  notice  being 
accompanied  by  the  log-book  and  a  list  of  all  persons  composing  the 
crew. 

The  court  shall,  after  receipt  of  the  notice,  proceed  with  the  ex- 
tension of  the  protest  as  soon  as  possible. 

The  day  fixed  for  this  purpose  shall,  whenever  the  circumstances  of 
the  case  admit  of  such  delay,  be  made  publicly  known  in  an  adecjuate 
manner. 

All  persons  having  an  interest  in  ship  and  cargo,  as  well  as  all  other 
persons  who  may  be  affected  by  the  accident,  are  entitled  to  be  present 
at  the  extension  of  the  protest  either  personally  or  by  deputy. 

The  extension  of  the  protest  is  based  upon  the  log-book.  When 
the  actual  log-book  cannot  be  produced,  or  when  a  log-book  has  not 
been  kept  (Art.  489),  the  reason  thereof  is  to  be  stated. 

Art.  493.  The  judge  is  authorised  to  examine  other  persons  of  tiie 
crew,  if  he  think  proper,  besides  those  that  have  been  produced.  He 
may,  for  the  sake  of  a  more  accurate  investigation,  put  suitable  ques- 
tions to  be  answei'ed  by  the, master  as  well  as  by  any  other  person 
belonging  to  the  crew. 

The  master  and  the  other  members  of  the  crew  who  may  have  been 
summoned  shall  confirm  their  depositions  upon  oath. 

The  original  protocol  drawn  up  respecting  the  extension  of  the 
protest  shall  be  preserved  and  a  certified  copy  granted  on  demand  to 
each  of  the  parties  interested. 

Art.  494.1  'j'l^g  extended  protest  drawn  up  in  conformity  with 
Articles  492  and  493  constitutes  complete  evidence  of  the  incidents  of 
the  voyage  testified  to  therein. 

Each  party  interested  retains  in  case  of  a  lawsuit  the  right  to  pro- 
duce counter-evidence. 

Art.  495.  Legal  business  which  the  master  transacts  while  the 
vessel  is  in  the  port  of  registry  is  only  binding  upon  the  owner  when 

'  Repealed  by  §  13  of  the  Civil  Process  Regulations,  d.  d.  January  30,  1S87. 


700  MAPJllME   LEGISLATION. 

the  master  has  acted  on  the  autJiority  of  a  power  of  attorney,  or  when 
there  is  some  other  special  reason  for  his  obligation  to  do  so. 

The  mast^er  is,  however,  entitled  to  engage  seamen  in  the  port  of 
registry. 

Art.  -190.  "When  the  vessel  is  not  in  the  port  of  registry  the  master 
is  as  against  third  parties,  by  virtue  of  his  appointment  autho- 
rised to  transact  on  behalf  of  the  owner  all  business  mattei's  whether 
leo-al  or  otherwise  rendered  necessary  by  the  outfit,  manning,  provision- 
ing, and  maintenance  of  the  vessel  and,  in  general,  for  the  performance 
of  the  voyage. 

This  authority  likewise  extends  to  the  entering  into  contracts  of 
affreightment  ;  it  extends,  moreover,  to  the  instituting  of  lawsuits 
having  reference  to  matters  connected  with  his  duties. 

Art.  497.  The  master  is,  however,  only  entitled  to  contract  loans, 
to  make  purchases  on  credit  and  to  conclude  similar  transactions  on 
credit,  when  they  are  necessary  for  the  maintenance  of  the  vessel  and 
the  completion  of  the  voyage,  and  only  so  far  as  is  necessary  to  supply 
the  actual  requii'ement.  He  is  only  at  liberty  to  enter  into  a  bottomry 
transaction  when  it  is  unavoidably  requisite  for  the  completion  of  the 
voyage,  and  only  so  far  as  is  necessary  to  suj^ply  the  actual  require- 
ment. 

The  validity  of  the  transaction  depends  neither  upon  the  actual 
application  of  the  money,  nor  upon  the  prudence  of  the  selection  made 
between  various  modes  of  raising  money,  nor  upon  the  question 
whether  tlie  master  had  at  his  disposal  the  money  required,  except  it 
.should  Ije  pro\ed  that  the  third  party  acted  in  bad  faith. 

Art.  498.  The  master  is  not  authorised  to  conclude  transactions  on 
the  personal  credit  of  the  owner,  nor  more  especially  to  contract  debts 
upon  bills  of  exchange  on  his  behalf,  unless  specially  authorised  by  a 
power  of  attorney  given  him  to  that  effect  (Art.  452,  par.  1).  Letters 
of  instruction  and  ordei-s  as  to  his  duties  which  the  master  receives 
from  the  owner  are  not  sufficient  to  set  up  a  personal  liability  of  the 
owner  in  favour  of  a  third  party. 

Art.  499.  The  master  is  empowered  to  sell  the  vessel  only  in  cases 
of  urgent  necessity,  and  when  such  necessity  has  been  ascertained  by 
tJie  local  court  after  hearing  the  opinion  of  experts,  and  with  the 
assistance  of  the  consul  of  the  country,  when  one  is  at  hand. 

Should  there  be  neither  a  court  of  law  nor  any  other  authority  on 
the  spot  to  undertake  the  inquiry,  the  master  shall,  in  order  to  justify 
liis  actions,  take  the  opinion  of  experts,  and  when  this  is  not  possible, 
provide  himself  with  other  jiroofs. 

'J'ho  salo  must  tak(!  ])l;u('  by  ])ublic  auction. 


APPENDIX.  701 

Art.  nOO.  Any  owner  who  has  placed  restrictions  upon  tiic  leijal 
authority  of  the  master  can  only  plead  against  third  parties  non- 
observance  of  such  restrictions  if  he  proves  that  they  were  known  to 
such  parties. 

Art.  501.  Should  the  master,  without  special  instructions,  have 
advanced  money  belonging  to  himself  for  account  of  the  owner,  or 
made  himself  personally  liable,  he  has  no  greater  claim  against  tlie 
owner  for  indomnitication  than  a  third  party. 

Art.  50:2.  Any  transaction  witliin  the  scope  of  the  master's  legal 
authority  entered  into  by  liini  in  liis  capacity  as  commander  of  the 
vessel,  gives  the  owner  a  legal  claim  against  a  third  party,  but  rendeis 
him  at  the  same  time  responsible  to  the  extent  of  ship  and  freight, 
whether  his  name  appear  or  not. 

The  master  himself  does  not  become  responsible  to  a  third  party  liy 
such  legal  transaction,  unless  he  has  guaranteed  its  fulfilment,  or  has 
exceeded  his  authority.  The  liability  of  the  master  in  conformity  witli 
Articles  478  and  479  is,  however,  not  excluded  hereby. 

Ai-t.  503.  The  foregoing  articles  are  likewise  binding  ujk))!  the 
owner  as  to  tlie  extent  of  the  authority  of  the  master  in  so  far  as  tliis 
authority  has  not  been  restricted  by  the  owner. 

It  is,  moreover,  the  duty  of  the  master  to  transmit  to  the  owner 
continual  information  of  the  condition  of  the  vessel,  the  incidents  of 
the  voyage,  the  contracts  entered  into  by  him,  and  the  lawsuits  that 
may  have  become  necessary  ;  and,  when  circumstances  permit,  to  apply 
to  the  owner  for  instructions  on  all  important  occasions,  particularly 
in  the  cases  contemplated  by  Articles  497  and  499,  or  when  he  is 
compelled  to  alter  or  abandon  a  voyage,  or  when  extraordinary  repairs 
and  outlay  for  necessaries  are  rendered  necessary. 

The  master  is  only  in  case  of  necessity  permitted  to  undertake 
extraordinary  repairs  and  outlay,  even  when  he  may  be  able  to  defray 
the  expense  with  funds  belonging  to  tlie  owner  over  which  he  may 
have  control. 

If  he  is  unable  to  procure  the  requisite  funds  to  provide  for  an 
urgent  necessity  in  any  other  way  than  either  by  bottomry  or  by  tlie 
sale  of  superfluous  appurtenances  or  provisions  of  the  ship,  he  shall 
adopt  that  alternative  which  entails  the  least  detriment  upon  the 
owner. 

After  his  return  to  the  port  of  registry,  and  otherwise  as  often  as 
it  is  demanded,  he  shall  render  his  account  to  the  owner. 

Art.  504.  The  master  shall  take  every  possible  care  of  the  cargo 
during  the  voyage  in  the  interest  of  those  concerned  therein. 

When  special  measures  are  required  in  order  to  avoid  or  lessen  a 


702  MAKiriME  lp:gislation. 

loss,  it  is  his  duty  to  protect  the  interest  of  those  concerned  in  the 
car<'0  as  their  representative  ;  to  take  their  instructions,  if  possible, 
and,  so  far  as  circumstances  admit,  to  carry  tlie  same  into  effect  ;  other- 
wise, however,  to  act  according  to  his  own  discretion,  and  generally  to 
take  every  possible  care  that  those  interested  in  the  cai-go  are  speedily 
informed  of  such  occurrences,  and  of  the  measures  thereby  rendered 
necessary. 

He  is  particularly  in  such  cases  authorised  to  discharge  the  whole 
or  a  portion  of  the  cargo  ;  in  extreme  cases,  if  on  account  of  imminent 
deterioi-ation  or  for  other  causes  a  considerable  loss  cannot  be  other- 
wise averted,  to  sell  or  hypothecate  it  for  the  purpose  of  providing 
means  for  its  preservation  and  further  transport  ;  to  reclaim  it  in  case 
of  capture  or  detention  ;  or,  if  it  shall  have  been  otherwise  withdrawn 
from  his  charge,  to  take  all  extra-judicial  and  judicial  steps  for  its 
recovery. 

Art.  505.  When  the  prosecution  of  the  voyage  in  its  original 
direction  is  prevented  by  an  accident,  the  master  is  at  liberty  either  to 
continue  the  voyage  in  another  direction,  or  to  suspend  it  for  a  shorter 
or  longer  period,  or  to  return  to  the  port  of  departure,  according  to 
the  circumstances  and  to  the  instructions  received,  which  latter  are  to 
be  adliered  to  as  closely  as  possible. 

In  the  case  of  the  cancelling  of  the  contract  of  affreightment  he 
shall  act  according  to  the  provisions  of  Art.  634. 

Art.  506.  Even  in  the  cases  referred  to  in  Art.  504,  the  master  has 
no  right  to  conclude  any  business  transaction  upon  the  personal  credit 
of  the  parties  interested  in  the  cargo,  unless  by  virtue  of  a  power  of 
attorney  authorising  liim  to  do  so. 

Art.  507.  With  the  exception  of  the  cases  stated  in  Art.  504,  the 
master  has  only  the  right  to  hypothecate  the  cargo,  or  to  dispose  of 
portions  thereof  l)y  sale  or  conversion,  when  and  in  so  far  as  it  is 
necessary  for  the  purpose  of  prosecuting  the  voyage. 

Art.  50S.  If  the  necessity  originates  in  a  General  Average,  and  if 
tln"  master  has  an  o]:)tion  of  remedies,  he  shall  take  that  alternative 
which  entails  the  least  detriment  to  the  parties  interested. 

Art.  509.  When  the  case  is  not  one  of  a  General  Average,  the 
ma.ster  shall  not  take  a  bottomiy  bond  on  the  cargo,  or  dispose  of  por- 
tions of  the  same  by  sale  or  conversion,  unless  he  cannot  provide  for 
his  recjuirements  in  any  other  way,  or  unless  the  adoption  of  other 
measures  would  cause  a  disproportionate  damage  to  the  owner. 

In  such  cases,  also,  he  can  only  hypothecate  or  take  a  bottomry 
bfMul  on  the  cargo  together  with  ship  and  freight.      (Art.  681,  par.  2.) 
He  shall  re.solvc  upon  tnking  a  l)ott()inry  l)r>iid  in  prcfen^nco  to  sale, 


APPENDIX.  703 

unless   a   disproportionate    damage   would    Jje    caused    thereby  to  the 
owner. 

Art.  510.  Taking  a  bottomry  l)ond  on  tlie  cargo,  or  disposing  of 
portions  of  the  same  by  sale  or  conversion,  shiill  be  considered  in  the 
cases  contemplated  in  the  foregoing  Article  as  credit  transactions  (Arts. 
497  and  7o7,  No.  7)  entered  into  for  account  of  the  owner. 

Art.  511.  The  enactments  of  Art.  497  are  to  be  applied  with  respect 
to  the  validity  of  legal  transactions  entered  into  Ijy  the  master  in  tiie 
cases  contemplated  by  Articles  504  and  507-509. 

Art.  51i'.  The  master  does  not  retjuirc  the  special  power  of  attorney, 
which  may  be  prescribed  by  the  laws  of  the  various  countries,  in  order 
to  transact  the  legal  and  other  business  to  which  he  is  authorised  by 
Articles  495,  496,  497,  499,  504,  5C7-509. 

Art.  513.  The  master  is  bound  to  place  to  the  credit  of  the  owner's 
account  every  amount  which,  in  addition  to  the  freight,  he  may  receive 
from  the  charterer,  shipper,  or  consignee  of  the  cargo,  such  as  primage 
or  anything  in  the  shape  of  remuneration  or  gratuity,  or  under  anv 
denomination  whatsoever. 

Art.  51  i.  The  master  shall  take  no  goods  on  boaid  for  his  own 
account  without  the  consent  of  the  owner.  If  he  acts  to  the  contrary, 
he  shall  pay  to  the  owner  the  highest  freight  charged  at  the  loadin  •■ 
port  for  such  voyages  and  goods  at  the  time  of  shipment,  without  pre- 
judice to  the  right  of  the  owner  of  enforcing  higher  damages,  which  he 
may  be  able  to  prove. 

Art.  515.  The  master  can  be  discharged  by  the  owner  at  any  time, 
any  agreement  to  the  contrary  notwithstanding,  but  without  prejudice 
to  his  claim  of  indemnity. 

Art.  516.  When  the  master  has  been  discharged  because  he  has 
been  found  to  be  incapable,  or  because  he  neglects  his  duty,  he  shall 
receive  only  so  much  of  his  wages,  including  all  other  stipulated  emolu- 
ments, as  he  has  earned  up  to  the  time  of  his  discharge. 

Art.  517.  When  the  master,  who  has  been  engaged  for  a  particular 
voyage,  is  discharged,  because  such  voyage  cannot  be  commenced  or  be 
continued  on  account  of  war,  embargo,  or  blockade,  or  on  account  of  a 
prohibition  of  irapoi-tation  or  exportation,  or  from  any  other  accident 
happening  to  ship  or  cargo,  he  shall  in  such  cases  also  receive  only  so 
much  of  his  wages,  including  all  other  stipulated  emoluments,  as  he  has 
earned  up  to  that  time.  The  same  rule  applies  when  a  master,  ap- 
pointed for  an  indefinite  period,  is  discharged  after  he  has  undertaken 
the  performance  of  a  particular  voyage. 

If  in  any  of  the  above  cases  the  discharge  takes  place  in  the  cour.se 
of  the  voyage,  the  master  is  entitled  at  his  option  either  to  a  free  pas- 


704  MATvITIME    LEGISLATION'. 

sage  to  the  port  where  he  has   been  engaged,  or  to  a  corresponding 
indemnity. 

"When  a  eh\im  for  a  free  return-passage  is  established  according  to 
the  provisions  of  this  code,  it  includes  also  the  maintenance  during  the 

voyage. 

Art.  518.  When  a  master,  who  has  been  engaged  for  an  indefinite 
period,  is  dischai'ged  for  other  reasons  than  those  stated  in  Articles  516 
and  517  after  he  has  undertaken  a  particular  voyage,  he  shall  receive, 
besides  what  is  due  to  him,  according  to  the  provisions  of  the  last 
article  two  months'  wages  if  the  discharge  has  taken  place  in  a 
European  port,  or  four  months'  wages  if  it  lias  taken  place  in  a  non- 
European  port. 

In  no  case,  however,  shall  he  be  entitled  to  mor-e  than  he  would 
have  received  if  he  had  completed  the  whole  of  the  voyage. 

Art.  519.  Should  the  pay  have  been  fixed  at  a  lump  sum  for  the 
whole  voyage,  the  wages  earned  in  the  cases  contemplated  by  Articles 
516-518  shall  be  calculated  in  proportion  to  the  services  rendered,  to 
the  part  of  the  voyage  actually  performed,  and  to  the  lump  sum  origi- 
nally fixed.  As  basis  for  the  computation  of  the  wages,  with  respect 
to  the  tw^o  or  four  months  stipulated  by  Art.  518,  shall  be  taken  the 
average  duration  of  the  voyage,  including  the  time  of  loading  and  dis- 
charo^ino-,  due  regard  being  had  to  the  condition  of  the  vessel. 

Art.  520.  When  the  return  voyage  of  the  vessel  does  not  terminate 
in  the  port  of  registry,  the  master,  who  has  been  engaged  for  the 
voyage  out  and  home,  or  for  an  unlimited  period,  shall  receive  a  free 
return-passage  to  the  port  where  he  had  been  engaged,  with  his  wages 
during  the  voyage,  or  at  his  option  a  corresponding  indemnity. 

Art.  521.  When  the  master  has  been  engaged  for  an  unlimited 
period,  he  is  bound  as  soon  as  he  has  entered  upon  a  voyage  to  remain 
in  such  service  until  the  vessel  has  returned  to  the  port  of  registry,  or 
to  a  home  port,  and  its  discharge  has  been  completed. 

He  can,  however,  demand  liis  discharge  after  two  years'  service 
from  tlie  date  of  his  first  departure,  when  the  vessel  at  the  time  of  his 
giving  notice  is  in  a  European  port,  or  after  tlii'ee  years'  service  when 
it  is  in  a  non-European  port.  He  shall  in  such  a  case  allow  the  owner 
sufficient  time  to  replace  him,  and  continue  his  duties  meanwhile,  and, 
at  all  events,  complete  the  current  voyage. 

If  tlie  owner  iiiunodiatcly  after  receiving  the  notice  has  given 
orders  for  the  return  voyage,  the  master  is  bound  to  bi-ing  the  vessel 
home. 

Art.  522.  If  the  master  b(>  dismissed  ngaiiist  liis  will,  the  share 
wliit-li    Ik-   ni.iv  lia\<'  in  Ili<'  \c.-scl  ;is  i>ai-(  owner   by  viituo  of  an  agree- 


APPENDIX.  705 

inent  with  the  other  owners,  must  at  his  deinaiul  ho  taken  and  paid  for 
by  the  other  owners  at  a  valuation  to  he  made  \)y  competent  persons. 
This  right  of  the  master  ceases  if  h(^  unduly  delays  the  notice  that  he 
intends  to  avail  himself  of  it. 

Art.  523.  When  after  the  comm^nccmsnt  of  the  voya;,'e  the  master 
is  invalided  or  woundel,  the  owner  has  to  bear  the  expenses  of  his 
care  and  restoration  to  health  — 

(1)  If  the  master  returns  in  the  vessel,  and  if  the  return  vovage 

terminates  in  the  port  of  registiy,  or  in  the  [tort  where  he 
has  been  hired,  up  to  the  tennination  of  the  return  voyage. 

(2)  If  he  returns  in  the  vessel  and  the  voyage  does  not  terminate 

in  either  of  the  aforesaid  ports  up  to  the  expiration  of  six 
months  after  tlie  termination  of  the  return  voyage. 
.  (3)  If  it  has  been  necessary  to  leave  him  behind  ashore  during  the 
voyage,  up  to  the  expiration  of  six  months  after  the  time 
when  the  vessel  has  continued' its  voyage. 

In  the  two  latter  cases  he  is  also  entitled  to  a  free  return-passage 
(Art.  517)  or,  at  his  option,  to  a  corresponding  indemnity. 

When  the  master  has  been  invalided  or  wounded  after  the  com- 
mencement of  the  voyage,  he  shall  receive,  if  he  returns  in  the  vessel, 
his  wages,  including  all  other  stipulated  emoluments,  until  the  termi- 
nation of  the  return  voyage,  and,  if  he  has  been  left  behind  ashore,  up 
to  the  day  on  which  he  leaves  the  vessel. 

If  the  master  has  been  injured  in  the  defence  of  the  vessel,  he  is 
besides  entitled  to  a  fair  raward,  which,  if  necessaiy,  shall  be  fixed  by 
the  judge. 

Art,  524.  When  the  master  dies  after  having  entered  upon  his 
duties,  the  owner  shall  pay  his  wages,  including  all  other  stipulated 
emoluments,  up  to  the  day  of  his  death ;  if  death  has  occurred  after 
the  commencement  of  the  voyage,  the  owner  shall  also  bear  the  funeral 
expenses. 

In  case  the  master  be  killed  in  defence  of  the  vessel,  the  owner 
shall  besides  make  a  fair  compensation,  which,  if  necessary,  shall  be 
fixed  by  the  judge. 

Art.  525.  The  provisions  of  Art.  453  are  also  to  be  applied  to  the 
claims  mentioned  in  Articles  523  and  524. 

Art.  526.  The  master  shall  take  care  to  have  the  protest  extended 
when  the  vessel  has  been  lost,  and  in  general  he  shall  protect  the 
interest  of  the  owner  as  long  as  it  is  necessary.  He  shall,  however, 
continue  to  receive  during  such  period  his  wages  and  payment  of  the 
cost  of  maintenance.  The  owner  is  personally  liable  for  such  wages 
and  such  costs  of  maintenance.     The  master  retains  his  claim  to  a  free 

Z  / 


700  MARITIME   LEGISLATION. 

return-passage  (Art.  ."ilT),  or,  at  his  option,  to  a  corresponding  indem- 
nity, subject  to  the  provisions  of  Art.  453. 

Art.  527.  This  code  does  not  affect  the  laws  of  tlie  various  countries 
as  regards  the  qualifications  required  of  the  master. 


FOURTH   PART.i 

As  to  (he  Creiv. 


Art.  528.  The  '  crew '  comprises  all  officers  of  the  ship  except  the 
master  ;  and  in  like  manner  the  word  '  seaman  '  includes  every  ship's 
officer  except  the  master. 

Art.  529.  The  conditions  of  the  agreement  made  with  the  crew 
shall  be  stated  in  the  ship's  articles. 

Art.  530.  When  a  seaman  has  been  engaged  after  the  articles  have 
been  drawn  up,  the  stipulations  made  with  the  other  seamen,  according 
to  the  contents  of  the  said  articles,  shall  be  applied  to  him  in  default 
of  any  arrangement  to  the  contrary  ;  he  shall  more  especially  be  en- 
titled only  to  the  same  wages  which,  according  to  the  articles,  are  due 
to  the  other  seamen  of  his  class. 

Art.  53L  The  obligation  of  the  crew  to  go  on  board  and  enter  upon 
their  duties  commences,  unless  any  other  agreement  has  been  made, 
from  the  time  of  their  engagement.  The  wages  are  to  be  paid  from 
the  same  period,  in  default  of  any  arrangement  to  the  contrary. 

Art.  532.  The  master  can  cause  any  seaman,  who,  after  having  been 
engaged,  neglects  to  enter  upon  or  continue  to  do  his  duties,  to  be 
forcibly  compelled  to  pei-form  the  same. 

Art.  533.  The  seaman  shall  unhesitatingly  obey  the  orders  of  the 
master  witli  regard  to  the  service  of  the  ship,  and  he  shall  at  all  times 
perform  every  work  entrusted  to  him  with  regard  to  ship  and  cargo. 

He  shall  be  subject  to  the  disciplinary  power  of  the  master.  The 
further  regulations  concerning  the  disciplinary  power  of  the  master  are 
reserved  to  the  laws  of  the  various  countries. 

Art.  534.  The  seaman  shall  not  bring  any  goods  on  board  without 
permission  of  the  master.  He  shall  pay  the  highest  freiglit  paid  at  the 
loading-port  for  such  voyage  and  goods  at  the  time  of  shipment  for  any 

'  The  fourth  part  of  the  German  General  Mercantile  Law,  including  Arts.  528- 
5.50,  lias  been  repealed  by  the  law  regarding  ships'  masters  and  seamen  of  December 
27,  1872.  (Vide  translation,  p.  7U0).  But  as  in  several  parts  of  these  enact- 
ments reference  is  made  to  statements  contained  in  the  old  law,  which  would 
bo  unintelligible  if  not  before  the  reader,  tliose  ropciilcd  iuticlcs  arc  nevertheless 
reprinted. 


APPENDIX.  707 

goorls  shipped  by  liim  contrary  to  tliis  proliibitioii,  wliether  for  liiiusolf 
or  for  others,  without  prejudice  to  any  claims  for  higlier  damages  that 
may  he  proxed. 

The  master  is  also  authorised  to  throw  the  goods  overboard  if  they 
endanger  the  ship  or  cargo. 

The  laws  of  the  various  countries  inflicting  additional  penalties 
upon  any  contravention  of  this  prohibition  are  not  afl'ected  by  this 
enactment. 

Ai-t.  535.  The  seaman  is  bound,  if  so  required,  to  assist  at  the 
extending  of  the  protest  and  to  confirm  his  deposition  ])y  oath. 

Arf.  5.36.  In  default  of  another  agreement  the  wages  shall  not  be 
paid  to  the  seaman  until  after  the  termination  of  the  voyage  ;  or  on 
his  discharge,  if  the  same  takes  place  before  that  time.  The  laws  of 
the  various  countries,  and,  in  default  thereof,  the  custom  of  the  port 
of  registry,  shall  determine  what  advances  and  payments  on  account 
shall  be  made  before  the  commencement  of  and  during  the  voyage. 

Art.  537.  The  seaman  shall  not  sue  the  master  before  a  foreign  law 
court.  If  he  acts  contrary  to  this  provision  he  shall  not  only  answer 
for  the  loss  occasioned  thereby,  but  he  shall  also  forfeit  the  wages  earned 
up  to  that  time. 

In  cases  of  need  he  may  apply  to  his  country's  consul,  or  to  that 
consul  who  is  authorised  to  act  in  his  place,  and  in  default  of  sucli  to 
the  consul  of  any  other  German  State,  in  order  to  obtain  a  provisional 
decision. 

Each  party  shall  provisionally  submit  to  the  decision  of  the  consul, 
without  prejudice  to  the  right  of  enforcing  their  claims,  after  the  ter- 
mination of  the  voyage,  before  the  competent  authority. 

Art.  538.  Unless  the  agreement  contains  provisions  to  the  contrary, 
the  seaman  shall  remain  in  the  service  during  the  whole  of  the  voyao'e, 
including  intermediate  trips,  if  any,  and  until  the  termination  of  the 
return  voyage. 

If  the  leturn  voyage  does  not  terminate  in  the  port  of  registry,  he 
is  entitled  to  a  free  return-passage  (Art.  517)  to  the  port  where  he  has 
been  engaged,  and  to  the  payment  of  his  wages  during  the  voyao'e,  or, 
at  his  option,  to  a  corresponding  indemnity. 

Art.  539.  If,  after  the  termination  of  the  outward  voyaofe,  an  inter- 
mediate voyage  has  been  decided  upon,  or  if  an  intermediate  voyaf^e 
has  been  terminated,  the  seaman  may  demand  his  discharge  after  two 
years  from  his  engagement,  if  the  vessel,  at  the  time  of  his  fivin" 
notice,  is  in  a  European  port,  or  after  three  years  if  it  is  in  a  non- 
European  port.  On  his  discharge  tlie  seaman  shall  receive  his  wa^es 
earned  up  to  that  time,  but  no  other  indemnity. 


703  MAPJTIME    LEGISLATION. 

But  the  discharge  cannot  be  demanded  when  the  return  voyage  has 

been  ordered. 

Art.  540.  The  fore^-oing  Article  does  not  apply  when  the  seaman  has 
engaged  himself  for  a  longer  time. 

An  en<»ao-ement  for  an  unlimited  period,  or  with  the  general  con- 
dition that  after  the  termination  of  the  outward  voyage  the  agreement 
shall  be  continued  for  all  voyages  that  might  be  resolved  upon,  shall  not 
be  considered  as  an  engagement  for  a  longer  time. 

Art.  541.  In  default  of  another  agreement,  an  increase  of  wages,  if 
payable  by  time,  shall  take  place  for  the  seamen  who  shall  have  served 
since  the  outward  voyage,  in  all  cases  M'here  a  vessel  remains  abroad 
longer  than  two  years. 

The  amount  of  the  increase  shall  be  fixed  by  the  laws  of  the  various 
countries. 

Art.  542.  The  engagement  terminates  when  the  owner  loses  the 
vessel  through  an  unforeseen  incident,  more  especially — 
If  it  is  lost  by  accident. 

If  it  has  been  condemned  as  incapable  or  unworthy  of  repair 
(Art.  444),  and  if,  in  the  latter  case,  it  is  sold,  without  delay, 
by  public  auction. 
If  it  is  captured  by  pirates. 

If  it  is  seized  or  detained  and  condemned  as  good  prize. 
In  such  a  case  the  seaman  shall  not  only  receive  the  wages  he  may 
have  earned,  but  also  a  free  return-passage  to  the  port  where  he  has  been 
engaged,  or,  at  the  option  of  the  master,  a  corresponding  indemnity. 

He  is  bound  to  render  assistance  in  salvage  on  continuation  of  his 
wages,  and  to  assist  in  the  extending  of  the  protest,  on  payment  of 
travelling  expenses  and  for  loss  of  time.  The  owner  is  personally 
lialjle  for  these  expenses  ;  but  in  all  other  respects  he  is  only  answei'able 
subject  to  the  provisions  of  Art.  453. 

A7't.  543.  The  master  can,  besides  in  the  cases  provided  for  in  the 
agreement,  discharge  the  seaman  before  the  expiration  of  his  time  of 
service  — 

(1)  As  long  as  the  voyage  has  not  yet  been  commenced,  if  the  sea- 

man is  incapable  for  the  service  for  which  he  has  engaged  ; 
if  such  incapacity  is  not  found  out  until  later,  the  master  is 
entitled  to  disrate  the  seaman,  and  to  lower  his  wages  in 
proportion ;  the  mate  is  excepted  from  this  pro^■ision. 

(2)  If  tlie  seaman  connuits  a  gross  offence  against  his  duty,  more 

cs[)ecially  if  he  is  guilty  of  repeated  disobedience  or  con- 
tinued refractory  conduct,  of  smuggling,  or  of  any  action 
subject  to  severe  punishment. 


APPENDIX.  709 

(3)  If  the  seaman  is  infected  with  syphilitic  disease,  or  if,  l>y  doing 
a  prohibited  act,  he  has  become  invalided  or  wounded,  and 
thereby  incapacitated  to  work. 

(■1)  If  tlie  voyage  for  which  the  seaman  has  been  engaged  cannot 
be  commenced  or  continued  on  account  of  war,  emljargo,  or 
blockade,  or  on  account  of  a  prohibition  of  exportation  or 
importation,  or  on  account  of  any  other  casualty  happening 
to  ship  or  cargo. 

Art.  544.  In  the  cases  .stated  under  Nos.  1-3  of  Art.  543,  the  sea- 
man is  not  entitled  to  more  than  the  wasge  earned  ;  in  the  cases  of 
No.  4  he  is  entitled,  when  the  discharge  occurs  after  the  commence- 
ment of  the  voyage,  not  only  to  the  wages  earned  but  also  to  a  free 
return-passage  (Art.  517)  to  the  port  where  he  has  been  engaged,  or, 
at  the  option  of  the  master,  to  a  corresponding  indemnity. 

The  laws  of  the  various  countries  subjecting  the  seaman  to  the 
loss  of  the  wages  earned  in  cases  of  violation  of  duty  (No.  2)  are  not 
affected  by  the  foregoing  enactment. 

It  is  also  reserved  to  the  laws  of  the  various  countries  to  permit 
the  involuntary  discharge  of  the  seamen  without  any  or  with  only 
partial  indemnity  in  other  cases  than  those  stated  in  Art.  543. 

A7-t.  545.  A  seaman  engaged  for  the  voyage  who  maybe  discharged 
before  the  termination  of  the  contract  for  other  reasons  than  tliose 
stated  in  Articles  543  and  544,  shall,  if  the  discharge  takes  place 
before  commencing  the  voyage,  retain  as  an  indemnity  the  deposit  and 
advances  received,  provided  the  sum  is  not  above  the  amount  usually 
so  advanced. 

When  no  deposits  or  advances  have  been  given,  he  is  entitled  to 
one  month's  wages  as  an  indemnity. 

If  the  discharge  occurs  after  the  commencement  of  the  voyage,  he 
shall  receive,  besides  the  wages  earned,  two  months'  wages  if  he  has 
been  discharged  in  a  European  port,  or  four  months'  Avages  if  he  has 
been  discharged  in  a  non-European  port,  but  he  shall  not  receive  more 
than  he  would  have  been  paid  if  he  had  only  been  discharged  at  the 
termination  of  the  voyage. 

He  is,  moreover,  entitled  to  a  free  return-passage  (Art.  517)  to  the 
port  where  he  has  been  engaged,  or,  at  the  option  of  the  master,  to  a 
corresponding  indemnity. 

Art.  546.  "When  the  wages  have  been  fixed  in  a  lump  sum,  the 
wages  earned  (Articles  537,  539,  542,  544,  545)  and  the  wages  for  one, 
two,  or  four  months  (Art.  545)  shall  be  calculated  accor  ing  ot 
Art.  519. 

Art.  547.  The  seaman  is  entitled  to  demand  his  discharge  when  the 


710  MAIUTIME   LEGISLATION. 

master  is  guilty  of  a  gross  violation  of  his  duties  towards  him,  more 
especially  of  severe  ill-treatment,  and  of  withholding  food  and  drink 
without  sufficient  reason. 

The  seaman  who  takes  his  discharge  for  such  a  reason  shall  have 
the  same  claims  as  in  the  case  contemplated  by  Art.  545. 

The  laws  of  the  various  countries  may  determine  whether,  and  for 
what  other  causes,  the  seaman  shall  be  entitled  to  demand  his  dis- 
charge. 

The  seaman  demanding  his  discharge  shall  not  cjuit  the  service  in  a 
foreign  country  without  the  consent  of  tlie  competent  consul  (Art. 
537). 

Art.  548.  If  a  seaman  becomes  invalided  or  wounded  after  having 
entered  the  service,  the  owner  shall  defray  the  expenses  of  his  care  and 
restoration — 

(1)  If  the  seaman  on  account  of  the  disease  or  wound  did  not  com- 

mence  the  voyage,   up   to  the  expiration  of  three    months 
from  the  time  he  became  invalided  or  wounded  ; 

(2)  If  he  enters  upon  the  voyage  and  returns  in  the  vessel  to  the 

port  of  registry,  or  the  port  where  he  has  been  engaged,  up 
to  the  expiration  of  three  months  from  the   return  of  the 
ship ; 
(.3)  If  he  enters  upon  the  voyage  and  returns  in  the  vessel,  but  in 
case  the  voyage  does  not  terminate  in  either  of  the  aforesaid 
ports,   then   up  to  the    expiration  of   six  months  from  the 
return  of  the  ship  ; 
(4)  If  he  had  to  be  left  behind  ashore  during  the  voyage,  up  to  the 
expiration  of  six  months  from  the  time  that  the  vessel  has 
continued  its  voyage. 
In  the  two  latter  cases  the  seaman  is  also  entitled  to  a  free  return- 
passage  (Art.  517)  to  the  port  where  he  has  been  engaged,  or,  at  the 
oj)tion  of  the  owner,  to  a  corresponding  indemnity. 

Art.  549.  The  invalided  or  wounded  seaman  shall  receive  his 
Avages — 

If  he  does  not  commence  his  voyage,  up  to  the  time  of  discon- 
tinuing his  duties; 
If  he  enters  upon  the  voyage  and  returns  in  the  vessel,  up  to 

the  termination  of  the  return  voyage ; 
If  he  had  to  be  left  behind  ashore  during  the  voyage,  up  to  the 
day  on  which  he  leaves  the  vessel. 
Jf  the   seaman    has   been    injured  in  defence  of   the  vessel,  he  is 
licsides  entitled  to  a  fair  reward,  which,  if  necesh;ary,  sliall  be  fixed  by 
the  judge. 


APPENDIX.  711 

Art.  550.  The  Articles  548  and  549  are  not  to  be  applied  to  seamen 
whose  disease  or  wounds  have  been  caused  by  their  own  proliibited 
acts  or  who  are  sulFering  from  sypliiiitic  complaints. 

Art.  551.  When  a  seaman  dies  after  having  entered  the  service,  the 
owner  shall  pay  the  wages  (Art.  54G)  earned  up  to  the  day  of  his  death 
and  defray  the  funeral  expenses.  When  a  seaman  has  been  killed 
while  defending  the  vessel,  the  owner  has,  in  addition,  to  pay  a  fair 
compensation,  which,  if  necessary,  is  to  be  fixed  by  the  judge. 

As  regards  the  projjerty  left  on  board  by  the  seaman  who  died 
during  the  voyage,  the  master  shall  make  an  inventory  thereof,  take 
care  of  the  eflects,  and  sell  the  same,  if  necessary. 

Art.  552.  The  enactments  of  Art.  453  are  equally  applicaljlc  to  tiio 
claims  mentioned  in  Articles  548,  549,  and  551. 

Art.  553.  It  is  reserved  to  the  laws  of  the  various  countries  to  define 
the  conditions  without  which  no  seaman  can  be  left  behind  in  a  foreign 
country  against  his  will,  and,  at  the  same  time,  to  regulate  the  master's 
proceedings  in  such  a  case. 

Art,  554.  Persons  not  belonging  to  the  crew,  but  appointed  on  board 
a  vessel  as  engineers,  stewards,  or  in  any  other  capacity,  shall,  in  so  far 
as  the  contrary  has  not  been  agreed  upon,  be  subject  to  the  same  rights 
and  duties  as  have  been  enacted  in  this  part  with  respect  to  the  crew. 

No  difference  shall  be  made  whether  they  have  been  engaged  by  the 
master  or  by  the  owner. 

Art.  555.  The  share  in  the  freight  or  in  the  profits  which  may  have 
been  accorded  to  the  seaman  shall  not  be  considered  as  Avages  in  the 
sense  of  this  part. 

Art.  556.  It  is  reserved  to  the  laws  of  the  various  countries  to  com- 
plete the  provisions  of  this  part,  as  well  with  reference  to  the  matter  of 
wages  mentioned  in  the  foregoing  Article  as  in  other  respects. 


FIFTH   PART. 

Concerning  Freight  earned  by  the  Conveyance  of  Goods. 

Art.  557.  The  contract  of  affreightment  for  the  conveyance  of  goods 
refers  either — 

(1)  To  the  whole  vessel,  or  to  a  proportionate  part  of,  or  to  a  specially 

defined  space  in,  the  same  ;  or, 

(2)  To  single  packages  (general  cargo). 

Art.  558.  When  the  whole  vessel,  or  a  proportionate  part  of,  or  a  spe- 
cially defined  space  in,  the  same,  is  being  let,  each  party  may  demand 


712  MAEITDIE    LEGISLATION. 

tliat  with    respect  to  the  contract  a  docuiijent   in   writing  be  executed 
(charter-party). 

Art.  559.  When  a  whole  vessel  is  chartered,  the  cabin  is  not  included, 
but  without  the  consent  of  the  charterer,  no  goods  are  allowed  to  be 
shipped  in  the  same. 

Art.  560.  In  case  of  a  contract  of  affreightment  of  whatever  nature 
the  shipowner  '  is  bound  to  deliver  the  vessel  in  a  seaworthy  condition 
(Art.  557). 

He  is  answerable  to  the  charterer  for  every  damage  arising  from  the 
defective  condition  of  the  vessel,  unless  the  defects  could  not  have  been 
discovered  in  spite  of  all  possible  care. 

Art.  561.  The  master  sliall,  for  the  purpose  of  taking  in  the  cargo, 
remove  the  vessel  to  the  place  assigned  to  him  by  the  charterer,  or, 
when  the  vessel  has  been  chartered  by  more  than  one  party,  then  by  all 
the  charterers. 

The  master  shall  remove  the  vessel  to  the  loading-place  customary 
at  the  port,  if  the  aforesaid  notice  has  not  been  given  in  time,  or  if  tlie 
siime  place  is  not  assigned  by  all  the  charterers,  or  if  the  depth  of  the 
water,  the  safety  of  the  vessel,  or  the  local  regulations  or  arrangements 
do  not  permit  compliance  with  their  orders. 

Art.  562.  In  default  of  an  agreement  to  the  contrary,  or  other  re- 
gulations at  the  port  of  loading,  or  if  none  exist,  then  of  other  local 
customs,  the  goods  shall  be  brought  free  alongside  of  the  vessel  by  the 
charterer,  while  the  expense  of  taking  them  into  the  vessel  shall  be 
borne  by  the  shipowner. 

Art.  56.3.  The  sliipowner  is  bound  to  accept  otlier  goods  tendered  to 
liim  by  the  charterer  for  shipment  to  the  same  port  instead  of  those 
originally  agreed  to,  pi'ovided  his  position  is  not  thereby  altered  to  his 
disadvantage. 

This  provision  does  not  apply  when  the  goods  have  been  specially 
named  in  the  contract  and  not  merely  generally  described  by  their  class 
or  .sort. 

Art.  564.  The  charterer  or  shipper  who  gives  a  wrong  description  of 
the  goods  sliipped,  or  who  ships  contraband  of  war,  or  goods  the  exporta- 
tion of  M-hicli,  or  their  importation  into  the  port  of  destination,  has  been 
j)rohibited,  or  who  violates  at  the  shipment  the  legal  regulations,  and 
more  especially  the  laws  of  police,  excise,  and  customs — if  any  blame 
attaches  to  him — becomes,  not  only  answerable  for  the  delay  caused 

'  The  original  expression  is  '  vcrfraclitcr,'—  one  who  lets  the  vessel ;  the  English 
language  not  having  a  word  corresponding  to  this  expression,  I  have  taken  '  ship- 
owner '  to  designate  the  party  who  in  almost  all  cases  is  the  only  one  justified  to 
kl  a  vcBscl  cither  himself  or  through  his  legal  representative. 


APPENDIX.  713 

through  his  conduct  aiul  for  all  other  loss,  to  tho  shipowner,  but  also 
to  all  other  parties  mentioned  in  the  first  part  of  Art.  479. 

His  liability  towards  the  other  parties  is  not  excluded  by  the  fact  of 
his  having  acted  with  the  consent  of  the  master. 

The  seizure  of  the  goods  gives  him  no  right  to  refuse  the  payment 
of  the  freight.  When  the  goods  endanger  the  vessel  or  the  remainder 
of  the  cargo,  the  master  may  land  them,  or,  on  urgent  necessity,  throw 
them  overboard. 

Art.  565.  Whoever  ships  any  goods  on  board  without  tho  knowledge  of 
the  master  shall  likewise  be  answerable  for  any  damage  resulting  there- 
from, in  conformity  witli  the  foregoing  Aiticle.  The  master  may  reland 
such  goods,  or,  if  necessary,  throw  them  overboard  if  they  endanger  the 
vessel  and  the  rest  of  the  cargo.  When  the  master  has  kept  them  on 
board,  they  must  pay  the  highest  freight  charged  at  the  loading  port, 
at  the  time  of  shipment,  in  respect  to  such  voyages  and  goods. 

Art.  566.  Witliout  permission  being  given  l)y  the  charterer  the  ship- 
owner is  not  at  liberty  to  ship  the  goods  in  another  vessel.  If  he  acts 
contrary  to  this  provision,  he  is  answerable  for  all  damages  of  which  he 
does  not  prove  that  they  would  have  arisen  and  remained  at  the  del)it 
of  the  charterer,  even  if  the  goods  had  not  been  shipped  in  another 
vessel. 

This  Article  does  not  apply  to  transhipments  in  other  vessels  which 
in  cases  of  distress  take  place  after  the  commencement  of  the  voyage. 

Art.  567.  Without  the  consent  of  the  shipper  his  goods  shall  not  be 
shipped  on  deck  or  suspended  at  the  sides  of  the  vessel. 

It  is  reserved  to  the  laws  of  the  various  countries  to  decree  that  the 
foregoing  enactment,  as  far  as  it  relates  to  deckloads,  shall  not  apply  to 
the  coasting  trade. 

Art.  568.  When  the  whole  vessel  has  been  chartered,  the  master 
shall  inform  the  charterer  as  soon  as  he  is  ready  and  prepared  to  take 
the  cargo  on  board. 

The  loading-days  count  fi'om  the  day  after  that  on  which  the  notice 
has  been  given. 

If  so  agreed,  the  shipowner  shall  wait  for  the  cai'go  even  beyond 
the  loading-days  (days  on  demurrage). 

Unless  an  agreement  to  the  contrary  has  been  made,  no  extra 
remuneration  can  be  demanded  for  the  time  fixed  for  loading.  The 
charterer  is,  however,  bound  to  pay  the  shipowner  an  indemnity  for 
the  extra  time  (demurrage). 

Art.  569.  If  the  loading-days  have  not  been  fixed  by  contract,  they 
are  determined  by  the  local  regulations  at  the  port  of  shipment,  and  in 
default  by  tJie  local  custom.     Should  such  local  custom  not  exist,  a 


714  MARITIME    LEGISLATION. 

fair  period  of  time  according  to  the  circumstances  of  the  case  sliall  be 
taken  as  the  time  for  loading. 

"VMien  it  has  been  contracted  that  a  vessel  shall  wait  beyond  the 
lav-days  on  payment  of  demurrage,  but  when  the  duration  of  the  time 
lias  not  been  fixed,  it  shall  be  taken  at  fourteen  days. 

When  the  contract  contains  only  the  sum  payable  for  demurrage, 
it  shall  be  considered  that,  although  the  vessel  is  bound  to  lie  on  de- 
murraf^e,  the  duration  of  the  time  has  not  been  settled. 

Art.  570.  AVhen  the  duration  of  the  loading- days,  or  the  day  on 
which  they  shall  expire,  has  been  fixed  by  agreement,  the  days  on 
demurrage  begin  at  once  at  the  expiration  of  the  loading-days. 

In  default  of  such  agreement,  the  days  on  demurrage  commence 
only  after  the  shipowner  has  given  notice  to  the  charterer  that  the 
loading  days  have  expired.  The  shipowner  can  give  notice  to  the 
charterer  even  before  the  termination  of  the  loading-days  on  wliat  day 
he  considers  them  expired.  In  this  case  no  further  notice  on  the  part 
of  the  shipowner  is  required  at  the  expiration  of  the  loading-days  and 
the  beginning  of  the  days  on  demurrage. 

A7-t.  571.  After  the  expiration  of  the  loading- days,  or  in  case  a 
further  term  on  demurrage  has  been  agreed  to,  the  shipowner,  after  the 
expiration  of  such  term,  is  not  obliged  to  wait  any  longer  for  the  cargo. 
He  is,  however,  bound  to  give  to  the  charterer  at  least  three  days' 
notice  before  the  expiration  of  the  loading-days,  or  of  the  days  on 
demurrage,  of  his  intention  not  to  wait  any  longer. 

When  this  has  not  been  done,  the  loading-days,  or  the  days  on 
dennirrage,  do  not  expire  until  the  notice  lias  been  given  and  three 
days  have  elapsed  subsequently  to  its  delivery. 

The  three  days  mentioned  in  this  Article  shall  in  all  cases  be  con- 
sidered to  mean  running  calendar  days  without  interruption. 

Art.  572.  The  notices  of  the  shipowner,  mentioned  in  Articles  570 
and  571,  need  not  be  given  in  any  particular  form.  When  the 
charterer  refuses  satisfactorily  to  acknowledge  the  receipt  of  such  a 
notice,  the  shipowner  may  cause  a  public  document  to  be  executed 
thereupon  at  the  expense  of  the  charterer. 

Art.  573.  W^hen  the  demurrage  has  not  been  stipulated  by  contract, 
it  shall  be  fixed  by  the  judge  at  his  discretion,  and,  if  necessary,  after 
examination  of  experts. 

In  fixing  the  demurrage,  the  judge  shall  take  into  consideration  the 
merits  of  the  case,  more  particularly  the  wages,  the  cost  of  keeping  the 
crew,  and  the  lo.ss  of  freight  falling  upon  the  shipowner. 

Art.  574.  In  calculating  the  loading-days  and  the  days  on  demur- 
rage  th(^y  are  counted  as  running  days,   without  interruption  ;  more 


APPENDIX.  715 

particularly  are  included  Sundays  and  holidays,  as  ^vell  as  those  days 
on  whieii  the  charterer  is  accidentally  prevented  from  delivering  cargo. 
Those  days  are,  however,  to  be  excluded  on  -wliifh,  })y  reason  of  wind 
and  weather,  or  from  any  other  accident — 

(1)  The  delivery  to  the  vessel  not  only  of  the  stiitulated,    Ijut  also 
of  every  description  of  cargo  ;  or, 

("2)  Tiie  taking  in  of  the  cargo 
has  been  prevented. 

Art.  575.  The  sliipowner  is  entitled  to  demurrage  for  the  days 
during  which  he  has  been  longer  detained  owing  to  tlie  delivery  of  any 
kind  of  cargo  being  prevented,  even  when  such  prevention  has  occurred 
during  the  loading-days.  For  those  days,  however,  during  which  he 
lias  been  detained  in  consequence  of  any  prevention  having  arisen  in 
the  taking  in  of  the  cargo,  no  demurrage  is  due,  even  if  such  prevention 
has  occurred  during  the  days  on  demurrage. 

Art.  576.  When  local  regulations  or  local  customs  determine  the 
duration  of  the  loading-days  according  to  Art.  569,  the  two  foregoing 
Articles  apply  to  the  calculation  of  the  same  only  so  far  as  the  local 
regulations  or  local  customs  do  not  decide  anything  to  the  contrary. 

A7't.  577.  When  the  shipowner  has  stipulated  that  the  loading  must 
be  finished  by  a  certain  day,  he  is  not  obliged  to  wait  any  longer  be- 
cause the  delivery  of  every  description  of  cargo  (Art.  574,  No.  1)  has 
been  px-evented. 

Art,  578.  In  case  the  shipowner  has  to  receive  the  cargo  from  a 
third  party,  and  when  such  third  party  cannot  be  found,  notwithstanding 
that  the  readiness  of  the  shipowner  to  take  the  cargo  on  boaixl  has  been 
made  known  in  the  manner  customary  at  the  place,  or  when  such  third 
party  refuses  to  deliver  the  cargo,  the  shipowner  shall  at  once  inform 
the  charterer  thereof,  and  only  wait  for  the  cargo  until  the  expiration 
of  the  loading-days,  but  not  during  the  days  on  demurrage  that  may 
have  been  stipulated,  unless  he  should  receive  instructions  to  the 
contrary  within  the  loading-days  from  the  charterer  or  his  represen- 
tative. 

When  an  undivided  period  of  time  has  been  fixed  for  loading  and 
discharging  the  vessel  together,  one-half  of  such  period  shall  be  con- 
sidered in  the  above-mentioned  case  as  the  time  stipulated  for  loading. 

Art.  579.  If  required  by  the  charterer,  the  shipowner  is  bound  to 
enter  upon  the  voyage  even  without  the  full  cargo  contracted  for.  In 
such  a  case,  however,  he  shall  not  only  receive  the  full  freight  and 
demurrage,  if  any,  but  he  may  also  demand  additional  security  for  so 
much  as  the  incomplete  cargo  does  not  offer  sufficient  security  for  the 
full  freight.      The   cliai'tercr  shall,  besides,  repay  any  additional  ex- 


71G  -MAKITIME    LEGISLATION. 

penses  arising  to  the  shipo^vner  on  account  of  the  incompleteness  of  the 

cargo. 

Art.  580.  Shoukl  the  charterer  not  have  completed  the  delivery  of 
the  carcro  at  the  expiration  of  the  time  during  which  the  shipowner 
is  bound  to  wait  for  the  same  (lay-days),  the  shipowner  is  at  liberty, 
if  the  charterer  does  not  witlidraw  from  the  contract,  to  commence 
tlie  voyage,  and  to  enforce  the  claims  mentioned  in  the  foregoing 
Article. 

Art.  581.  Before  a  voyage  has  been  commenced,  whether  it  be  a 
sin"-le  or  a  compound  voyage,  the  charterer  may  withdraw  from  the 
contract,  on  paying  one-half  of  the  stipulated  freight  as  dead  freight. 

In  applying  this  provision,  the  voyage  shall  be  considered  as  having 
been  commenced — 

(1)  When  the  charterer  has  already  given  the  master  his  sailing 

orders  ; 

(2)  When  the  charterer  has  already  delivered  the  cargo  wholly  or  in 

part,  and  the  lay-days  have  expired. 

Art.  582.  When  the  charterer  avails  himself  of  the  right  mentioned 
in  the  foregoing  Article  after  delivery  of  cargo,  he  shall  likewise  bear 
tlie  expenses  of  loading  and  discharging,  and  pay  demurrage  for  the 
time  occupied  by  the  quickest  possible  unloading,  so  far  as  it  has 
not  been  completed  within  the  period  fixed  for  the  loading  (Art,  573). 

Tlie  shipowner  shall  submit  to  the  delay  caused  by  such  unloadiiig 
even  when  it  exceeds  the  stipulated  time  ;  he  shall,  however,  be  en- 
titled to  demurrage  for  the  period  after  the  expiration  of  the  same, 
and  to  an  indemnity  for  t)ie  loss  occasioned  tln-ough  any  such  excess  of 
time,  provided  that  such  loss  can  be  proved  to  exceed  the  amount  of 
such  demurrage. 

Art.  583.  After  the  voyage  has  been  commenced  in  the  sense  of 
Art.  581,  the  cliarterer  can  only  withdraw  from  the  agreement,  and 
demand  the  unloading  of  the  goods,  on  paying  the  full  freight  as  well 
as  all  other  claims  of  the  shipowner  (Art.  615),  and  on  paying  or 
securing  the  claims  mentioned  in  Art.  G16. 

In  case  of  such  unloading  the  charterer  shall  not  only  pay  the 
additional  expenses  thercljy  incurred,  Imt  also  indemnify  the  shipowner 
for  the  loss  caused  by  the  delay. 

The  shipowner  is  not  obliged  to  alter  the  voyage  or  to  run  into  a 
l)ort  for  the  purpose  of  such  unloading  of  the  goods. 

Art.  584.  The  charterer  shall  only  pay  two-thirds,  instead  of  the 
full  amount  of  the  freight,  as  dead  freight,  in  case  the  vessel  has  been 
chartered  for  the  round,  or  when  the  vessel,  for  tlie  pur})ose  of  per- 
forming the  contnict,  has  to  make  a  voyage  from  another  port  in  order 


ArPENDIX.  717 

to  take  in  the  cargo,  and  wlien  in  both  these  cases  such  witlidrawal  has 
been  notified  before  commencement,  in  the  sense  of  Art.  581,  of  tlie 
return  voyage  or  the  voyage  out  of  tlie  loading  port. 

Art.  585.  In  other  compound  voyages  the  shipowner  shall  receive 
the  full  amount  of  the  freight  as  dead  freight  if  the  charterer  declares 
such  witlidrawal  previous  to  the  commencement  of  the  last  part  of  the 
voyage  in  the  sense  of  Art.  581  ;  a  fair  portion  shall,  however,  be 
deducted,  if  there  is  reason  to  suppose  that,  by  the  cancelling  of  the 
contract,  the  shipowner  has  saved  expense,  and  has  had  an  opportunity 
of  earning  another  freight. 

When  the  parties  concerned  cannot  agree  as  to  the  deduction  and 
as  to  its  amount,  the  judge  shall  make  an  order  according  to  the  best 
of  his  judgment.  But  in  no  case  shall  such  deduction  exceed  one-half 
of  the  freight. 

Ai't.  586.  When  the  charterer  has  delivered  no  cargo  at  the  expira- 
tion of  the  waiting  time,  the  shipowner  is  no  longer  bound  by  the  con- 
tract, and  is  entitled  to  enforce  against  the  charterer  all  such  claims  as 
he  would  have  had  if  the  charterer  had  withdrawn  from  the  same 
(Articles  581,  584,  585). 

Art.  587.  The  freight  which  the  shipowner  receives  for  other  goods 
forming  part  of  cargo  shall  not  be  deducted  from  the  dead  freight. 

The  provisions  of  the  first  part  of  Art.  585  are,  however,  not  affected 
by  this  enactment. 

The  right  of  the  shipowner  to  claim  dead  freight  does  not  depend 
upon  the  actual  performance  of  the  voyage  contracted  for. 

The  right  of  the  shipowner  to  demand  demurrage  and  payment  of 
all  other  claims  which  he  may  be  entitled  to  make  (Art.  615)  is  not 
excluded  by  the  dead  freight. 

Art.  588.  If  a  proportionate  part  or  a  specially  defined  space  of  tlie 
vessel  has  been  chartered,  the  Articles  568-587  shall  apply  with  the 
following  modifications,  viz. — 

(1)  In  those  cases  where,  in  accordance  with  the  foregoing  enact- 

ments, the  shipowner  ought  to  have  been  satisfied  with  a 
portion  of  the  freight,  he  shall  receive  the  full  freight  as 
dead  freight,  unless  all  the  charterers  withdi'aw  fi'om  the 
contract  or  deliver  no  cargo. 
The  freight  for  such  goods,  however,  which  the  shipowner 
has  engaged  in  lieu  of  those  not  delivered,  shall  be  deducted 
from  the  full  fi'eight. 

(2)  In  the  cases  contemplated  by  Articles  582  and  583,  the  charterer 

cannot  demand    the   unloading  of  his  goods  if  the  voyage 
would  thereby  be  delayed,  or  a  transhipment  be  necessitated, 


718  MARITIME   LEGISLATION. 

except  with  the  consent  of  the.  whole  of  the  charterers  con- 
cerned. The  charterer  shall  besirles  repay  all  costs  and  make 
good  any  loss  caused  by  such  unloading. 
Should  all  cliarterers  avail  themselves  of  the  right  of  such 
-s\ithdrawal,  the  provisions  of  Articles  582  and  583  remain 
in  force. 

Art.  589.  When  the  contract  of  aflfreightment  has  been  made  for  a 
general  cargo,  the  charterers  shall  deliver  the  goods  without  delay,  at 
the  demand  of  the  master. 

If  the  charterer  is  behind  time,  the  shipowner  is  not  bound  to  wait 
for  the  delivery  of  the  goods  ;  the  charterer,  nevertheless,  being  oljliged 
to  pay  the  full  freight,  if  the  voyage  has  been  commenced  without  them. 
Allowance  is,  however,  to  bs  made  for  the  freight  of  such  goods  as  the 
owner  has  taken  in  lieu  of  those  not  originally  delivered. 

The  shipowner  intending  to  enforce  such  claim  for  the  full  freight 
against  the  charterer  in  arrear  shall,  under  penalty  of  the  loss  of  such 
claim,  give  notice  to  the  charterer  thereof  previous  to  the  departure  of 
the  \-essel.     The  provisions  of  Art.  572  apply  to  the  aforesaid  notice. 

Art.  590.  The  charterer  can,  after  the  shipment  has  been  effected, 
withdraw  from  the  contract,  and  demand  the  discharge  of  his  goods  on 
paying  the  full  freight,  as  well  as  all  other  claims  of  the  shipowner 
(Art.  615),  and  on  paying  or  securing  all  such  claims  as  mentioned  in 
Art.  616,  only  in  accordance  with  the  first  part  of  Art.  588,  No.  2. 

Tlie  provisions  of  the  last  pai'agraph  of  Art.  583  apply  equally  to 
these  cases. 

Art.  591.  When  a  vessel  is  laid  on  the  bex-th  for  a  general  cargo,  and 
the  time  of  departure  has  not  been  stipulated,  the  judge  shall,  on  the 
application  of  the  charterer,  and  according  to  the  circumstances  of 
the  case,  fix  the  date  beyond  which  the  commencement  of  the  voyage 
cannot  be  delayed. 

Art.  592.  In  all  cases  of  contracts  of  aflreightment,  the  charterer 
shall  provide  the  master  with  all  documents  required  for  the  shipment 
of  his  goods  within  tlie  period  during  which  such  shipment  ought  to 
have  been  etiected. 

Art.  593.  The  master  shall,  for  the  pui'pose  of  discharging  the 
cargo,  remove  the  vessel  to  such  place  as  is  assigned  to  him  by  the  party 
to  whom  the  cai-go  is  to  be  delivered  (consignee),  or,  if  the  cargo  is  to 
be  delivered  to  several  parties,  to  such  place  as  is  assigned  to  hin)  by 
all  the  consignees. 

If  the  aforesaid  order  has  not  been  given  in  due  time,  or  if  the 
same  j)lace  is  not  assigned  by  all  the  consignees,  or  if  the  depth  of  the 
water,  the  safety  of  the  vessel,  or  the  local  regulations  or  arrangements 


AVPENDIX.  719 

do  not  permit  coinijliaiice  with  such  orders,  the  master  shall  remove  tlie 
vessel  to  such  place  of  discharge  as  is  customary  at  the  port. 

Art.  594.  In  default  of  an  agreement  to  the  contrary,  or  of  other 
regulations  at  the  port  of  discharge,  or,  if  none  exist,  then,  of  other 
local  customs,  the  expenses  of  unloading  out  of  the  vessel  are  to  be 
borne  by  the  shipowner,  but  all  other  expenses  relating  to  the  discharge 
are  to  be  borne  by  the  consignees  of  the  cargo. 

Art.  595.  When  the  whole  vessel  has  been  chartered,  the  master 
shall  give  notice  to  the  consignee  as  soon  as  he  is  ready  and  prepared 
to  discharge. 

Hhould  the  consignee  be  unknown  to  the  master,  the  notice  shall 
be  given  by  public  advertisement  in  the  manner  customary  at  the  place. 
The  days  for  discharging  commence  with  the  day  after  that  on  which 
the  notice  has  appeared. 

Beyond  the  time  fixed  for  discharging  the  shipowner  has  only  to 
wait  for  the  removal  of  the  cargo,  when  an  agreement  has  been  made 
to  that  effect  (days  on  demurrage). 

Unless  an  agreement  to  the  contrary  has  been  made,  no  extra  allow- 
ance can  be  demanded  for  the  time  fixed  for  the  dischai'ge.  For  the  extra 
time,  however,  the  shipowner  is  entitled  to  an  indemnity  (demurrage). 

When  the  demurrage  has  not  been  settled  by  contract  it  shall  be 
fixed  by  the  judge  in  conformity  with  Art.  573. 

Art.  596.  If  the  days  for  discharging  have  not  been  fixed  by  con- 
tract they  are  to  be  determined  by  the  local  regulations  at  the  port  of 
discharge,  and,  in  default,  by  the  local  custom.  Should  no  such  local 
custom  exist,  a  fair  period  of  time,  according  to  the  circumstances  of 
the  case,  shall  be  taken  as  the  days  for  discharging. 

In  case  it  has  been  contracted  that  a  vessel  shall  wait  beyond  the 
lay-days  on  payment  of  demurrage,  but  the  duration  of  such  time  on 
demurrage  has  not  been  fixed,  it  shall  be  taken  at  fourteen  days. 

When  the  contract  contains  only  the  amount  paya])le  for  demurrage, 
it  is  to  be  presumed  that,  although  the  vessel  is  bound  to  lie  on  demur- 
rage, the  duration  of  such  time  has  not  been  finally  agreed  upon. 

Art.  597.  Should  the  duration  of  the  days  for  discharging,  or  the 
day  on  which  they  shall  expire,  have  been  fixed  by  agreement,  the 
days  on  demurrage  begin  at  once  with  the  expiration  of  such  day.s  for 
discharging. 

In  default  of  such  an  agreement  the  days  on  demurrage  commence 
only  after  the  shipowner  has  given  notice  to  the  consignee  that  the 
days  for  discharging  have  expired.  The  shipowner  can  give  notice  to 
the  consignee,  even  before  the  expiration  of  the  days  for  discharging, 
on  what  day  he  considers  them  at  an  end      In   this  case  no  further 


720  MAIUTI.ME   LEGISLATIOX. 

notice  on  the  part  of  the  shipowner  is  required  at  the  expiration  of  the 
days  for  discharging  and  at  the  beginning  of  the  days  on  demurrage. 

The  provisions  of  Art.  572  apply  to  such  notices  required  of  the 
shipowner  as  are  mentioned  in  this  Article. 

Art.  598.  In  calculating  the  days  for  discharging,  and  the  days  on 
demui-rao-e,  they  are  counted  as  running  days  without  interruption, 
moi-e  particularly  Sundays  and  holidays  are  included,  as  well  as  sucli 
other  days  on  which  the  consignee  had  been  accidentally  prevented  from 
receiving  the  cai-go. 

Excluded  are,  however,  such  days  on  which,  by  reason  of  wind  and 
weather  or  by  any  other  accident — 

(1)  The  conveyance  not  only  of  the  goods  on  board  the  vessel  but 

of  every  description  of  cargo  from  the  shi^j  to  the  shore  ;  or, 

(2)  The  unloading  out  of  the  vessel 
has  been  prevented. 

Art.  599.  The  shipowner  is  entitled  to  demurrage  for  all  days 
during  which  he  has  been  compelled  to  wait  in  consequence  of  an 
impossibility  to  convey  any  description  of  cargo  from  ship  to  shore, 
even  should  such  prevention  have  occurred  during  the  days  stipulated 
for  discharging.  For  those  days,  however,  during  which  he  has  been 
compelled  to  wait  in  consequence  of  an  impossibility  to  unload  the 
vessel,  no  denmn-age  is  due,  even  should  such  prevention  have  occun-ed 
during  the  days  on  demurrage. 

Art.  600.  When  local  regulations  or  local  customs  determine  the 
duration  of  the  days  for  dischai-ging  according  to  Art.  59G,  the  two 
fore'^'oin'T  Articles  apply  to  the  calculation  of  tlie  same  only  so  far  as 
the  local  regulations  or  local  customs  do  not  decide  anything  to  the 
contrary. 

Art.  601.  In  case  the  shipowner  has  stipulated  that  the  discharge 
must  be  finished  by  a  certain  day,  he  is  not  obliged  to  wait  any  longer 
because  tlie  conveyance  of  any  description  of  cargo  from  ship  to  shore 
(Art.  598,  No.  1)  has  been  prevented. 

Art.  602.  Should  the  consignee  have  declared  his  readiness  to 
receive  tlie  goods  but  delays  their  reception  beyond  the  time  accorded 
to  liim,  the  shipowner  may  cause  their  deposit  under  legal  custody  or 
in  any  other  safe  manner,  giving  notice  tliei-eof  to  the  consignee. 

The  master  is  bound  to  proceed  as  herein  described,  and  to  give 
at  the  same  time  notice  thereof  to  the  charterer,  in  case  the  consignee 
declines  to  take  delivery  of  the  goods  or  withliolds  any  satisfactory 
an.swer  upon  the  notice  prescribed  in  Art.  595,  or  if  the  consignee  is 
not  to  be  found. 

Art.  60:3.  In  so  far  as,  by  the  delay  of  (lie  consignee  or  l)y  any 


APPENDIX.  721 

proceeding  caused  by  the  depositing  of  the  goods,  the  days  for  dis- 
charging have  been  exceeded  without  any  fault  of  the  master,  the 
shipowner  is  entitled  to  demurrage  (Art.  59")),  Ijut  without  prejudice 
to  las  right  to  claim  such  higher  damages  as  he  may  be  able  to  prove 
for  such  detention,  provided  it  does  not  come  within  the  period  which 
he  has  contracted  to  wait  on  demurrage. 

Art.  604.  The  Articles  r»i)r)-G03  likewise  apply  if  a  proportionate 
part  or  a  specially  defined  space  of  the  vessel  have  been  chartered. 

Art.  605.  The  consignee  of  any  general  merchandise  is  l>ound  to 
receive  the  same  without  any  delay  at  the  master's  demand.  In  case 
tlie  consignee  is  not  known  to  the  master  such  demand  shall  be  made 
by  public  advertisement  in  the  manner  customary  at  the  place. 

The  pi'oxLsions  of  Art.  602  likewise  apply  iu  respect  to  the  right 
and  the  obligation  of  the  master  to  deposit  the  goods.  The  notice  to 
the  charterer  prescribed  iji  Art.  602  may  be  given  by  public  advertise- 
ment in  the  manner  customary  at  the  place. 

For  those  days  by  which,  by  the  delay  of  the  consignee,  or  by  any 
proceeding  caused  by  the  depositing  of  the  goods,  the  period  within 
which  the  vessel  ought  to  have  been  discharged  has  been  exceeded, 
the  shipowner  is  entitled  to  demurrage  (Art.  595),  without  prejudice 
to  his  right  to  claim  such  higher  damages  as  he  may  be  able  to  prove. 

Art.  606.  If  the  whole  vessel,  or  a  propoi-tionate  part,  or  a  specially 
defined  space  of  the  same,  has  been  chartered,  and  the  chai-terer  has 
eflfected  any  re-charters  for  the  conveyance  of  any  general  merchandise, 
the  Articles  595-603  remain  in  force  respecting  the  rights  and  duties 
of  the  original  owner  of  the  vessel. 

Art.  607.  The  shipowner  is  answerable  for  any  damage  arising 
through  loss  of  or  injury  to  the  goods,  from  the  time  of  their  being 
shijiped  until  their  delivery,  unless  he  can  prove  that  such  loss  or  injury 
has  been  caused  l)y  the  act  of  God  (vis  major),  or  by  tlie  natural  con- 
dition of  the  goods,  more  particularly  by  vice  propre,  by  diminution  in 
quantity,  by  ordinary  leakage,  &c.,  or  by  such  defective  packing  as 
could  not  be  noticed  externally. 

Loss  and  injury  arising  from  a  defective  condition  of  the  vessel, 
which  in  spite  of  all  possible  caution  could  not  be  discovered  (Art.  560, 
par.  2),  are  to  be  considered  as  loss  and  injury  by  the  act  of  God. 

Art.  608.  The  shipowner  is  not  answerable  for  jewels,  specie,  and 
valuable  documents,  unless  the  description  and  value  of  the  articles 
were  declared  to  the  master  at  the  time  of  shipment. 

Art.  609.  Before  the  consignee  has  taken  delivery  of  the  goods,  he, 
as  well  as  the  master,  may,  in  order  to  ascertain  their  condition 
or  quantity,  cause  a  survey  of   them  to   be   made  by  the  competent 

3  A 


722  MAPJTIME    LEGISLATION. 

authority,  or   hy   such  surveyors   as    are    officially  appointed    for  the 

purpose 

If  circumstances  permit,  the  adverse  party,  if  on  the  spot,  shall  be 
sumuioned  to  attend  at  these  proceedings. 

Art.  610.  When  the  survey  was  not  effected  before  delivery  was 
talcen,  the  consignee  is  bound  to  cause  a  supplementary  surAey  of  the 
foods,  in  conformity  with  Article  609,  to  be  held  within  forty-eight 
hours  after  the  day  of  the  delivery,  under  penalty  of  forfeiting  all 
claims  for  damage  or  partial  loss,  no  matter  whether  such  loss  and 
damage  have  been  externally  perceptible  or  not. 

This  clause  does  not  apply  to  any  losses  and  damages  which  may 
have  been  caused  by  a  malicious  act  of  a  person  belonging  to  a  crew. 

Art.  61 L  The  expenses  of  the  survey  shall  be  borne  by  the  party 
who  has  demanded  the  same. 

Should,  hoAvever,  the  survey  take  place  at  the  request  of  the  con- 
signee, and  should  a  loss  or  damage  be  ascertained,  for  which  the 
shipoANiier  is  answerable,  the  expenses  ha^e  to  be  borne  lay  the  latter. 

Art.  612.  When,  in  virtue  of  Art.  607,  compensation  has  to  be 
made  for  the  loss  of  goods,  such  compensation  shall  only  be  for  the 
value  of  the  goods  lost.  This  value  shall  bo  decided  by  the  market 
price  of  goods  of  the  same  description  and  quality  at  the  port  of 
destination  of  the  lost  goods  at  the  commencement  of  the  discharge  of 
the  ship,  or  if  the  cargo  is  not  discharged  at  that  poi't,  then  at  the 
time  of  her  arrival.  When  no  market  price  can  be  ascertained,  or 
when  douV)ts  may  arise  as  to  such  price  or  its  applicability,  more 
particularly  as  regards  the  quality  of  the  goods,  the  value  shall  then 
be  settled  by  competent  persons.  From  the  price  shall  be  deducted 
freiglit,  duties,  and  expenses  saved  in  consequence  of  the  loss  of  the 
goods. 

When  the  port  of  destination  of  the  goods  is  not  reached,  the 
place  where  the  voyage  ends  is  substituted,  or  if  it  ends  by  the  loss  of 
tlie  ship,  then  the  place  to  which  the  goods  niay  be  brought  in  safety. 

Art.  01. '5.  Tlie  regulations  of  Art.  612  are  also  applicable  to  those 
goods  for  which  the  shipowner,  according  to  Art.  510,  must  make 
compensation. 

If,  in  a  case  where  goods  have  been  disposed  of  by  sale,  the  net 
proceeds  exceed  the  value  according  to  Art.  612,  then,  in  place  of  the 
latter  value,  the  net  proceeds  are  to  be  taken  into  calculation. 

Art.  614.  Wlicn  compensation  must  be  made  for  any  damage  to 
goods  acc(jrdiiig  to  Art.  607,  then  only  the  deterioration  in  their  value 
caused  by  the  damage  is  to  be  made  good.  Such  deterioration  shall 
J»f  coiisidfii'd  ('(lu.il    to   Ihc   diHriciicc  bet  ween  the  iiiaikct  Nalnc  of   tlic 


APPENDIX.  723 

goods  in  tlieir  (laiiiaged  state— which  is  to  be  ascertained  by  competent 
persons — and  the  price  stipulated  in  Ai-t.  Gr2  after  deduction  of 
Customs'  duties  and  other  expenses  as  far  as  tliey  may  have  l^een  saved 
in  consequence  of  such  damage. 

Art.  615.  By  taking  delivery  of  the  goods,  the  consignee  becomes 
liable  to  pay  the  freight  and  all  other  charges  in  conformity  with  the 
contract  of  affreightment  or  bill  of  lading,  on  tlie  basis  of  which  tlie 
delivery  is  made,  and  further  to  pay  demurrage,  if  any,  to  refund 
Customs'  duties  and  other  advances,  and  besides  to  fulfil  any  otlicr 
obligations  devolving  upon  him. 

The  sliipowner  shall  deliver  the  goods  to  the  consignee  on  payment 
of  the  freight  and  on  fulfilment  of  all  other  obligat'ons. 

Art.  616.  The  shipowner  is  not  bound  to  deliver  the  goods  before 
tlie  amounts  due  from  the  same  for  general  average,  salvage^  assistance, 
or  bottomry  have  been  paid,  or  security  given  for  the  amount. 

If  a  bottomry  bond  has  been  given  for  account  of  the  shipowner, 
the  above  regulation  holds  good  in  spite  of  the  shipowner's  obligation, 
to  free  the  goods  from  their  liability  to  the  bottomry  before  they  are 
delivered. 

Art.  617.  The  shipowner  is  not  obliged  to  accept  the  goods  in  pay- 
ment for  the  freight,  whether  they  are  destroyed  or  damaged  or  not. 

When,  however,  vessels  '  filled  with  liquids  have  leaked  during  the 
course  of  tlie  voyage  to  such  an  extent  that  they  have  become  altogether 
or  for  the  most  part  empty,  they  may  be  left  to  the  shipowner  in  pay- 
ment of  the  freight  and  of  his  other  claims  (Art.  615). 

By  an  agreement  that  the  shipowner  is  not  answerable  for  leakage 
or  by  the  clause,  '  free  from  leakage,'  such  right  is  not  prejudiced,  but  it 
ceases  altogether  as  soon  as  the  packages  have  passed  into  the  custody 
of  the  consignee. 

Should  the  freight  have  been  fixed  in  a  lump  sum,  and  only  some 
packages  totally  or  for  the  most  part  emptied,  they  can  be  left  to  the 
shijiowner  in  proportionate  payment  of  the  freight  and  of  his  otlier 
claims. 

Art.  618.  No  freight  is  due  for  goods  lost  by  any  accident ;  and  any 
freight  advanced  sliall  be  returned  unless  an  agreement  to  the  contrary 
has  been  made. 

This  provision  applies  also  when  the  whole  sliip  or  a  proportionate 
part  or  a  specially  defined  space  of  the  same  has  been  chartered.  If  in 
such  a  case  the  freiglit  has  been  stipulated  in  a  lump  sum,  tlie  loss  of  a 
part  of  the  goods  gives  a  right  to  a  proportionate  deduction  fi-om  the 
freight. 

'  Barrels,  casks  or  cases. 

3  A  2 


724  MARITIME   LEGISLATION. 

ArL  619.  Xotwitlistanding  any  non-delivery,  the  freight  must  be 
paid  for  goods  that  have  been  lost  in  consequence  of  their  natural  con- 
dition (Art.   607),  as  well  as  for  animals  that  have  died  during  the 

voyage. 

The  provisions  concerning  General  Average  will  enact  to  what 
extent  restitution  shall  take  place  of  the  freight  for  goods  sacrificed  in 
cases  of  General  Average. 

Art.  620.  For  goods  the  conveyance  of  which  has  been  undertaken 
without  the  freight  having  been  agreed  upon,  the  current  freight  shall 
be  paid  which  rules  in  the  port  of  loading  at  the  time  of  shipment. 

For  goods  beyond  the  quantity  contracted  for  with  the  charterer 
which  may  have  been  accepted  for  conveyance,  such  freight  shall  be 
paid  as  is  in  proportion  to  the  originally  agreed  freight. 

Art.  621.  When  the  freight  has  been  stipulated  for  measure,  weight, 
or  quantity,  it  shall  in  doubtful  cases  be  considered,  that  the  measure, 
weight,  or  quantity  delivered,  not  that  taken  in,  shall  decide  the 
amount  of  freight  due. 

Art.  622.  Primage,  gratuities,  &c.,  cannot  be  demanded  in  addition 
to  the  freight,  unless  they  have  been  previously  agreed  upon. 

The  ordinary  and  extraordinary  expenses  of  navigation,  as  :  pilot- 
ace,  harbour  dues,  light  dues,  towage,  quarantine  expenses,  charges 
for  cutting  passages  through  the  ice,  &c.,  are  to  be  borne  by  the  ship- 
owner alone,  unless  an  agreement  to  the  contrary  was  effected  ;  even 
if  the  contract  of  affreightment  should  not  specially  bind  him  to  per- 
form the  acts  causing  this  expenditure. 

Cases  of  General  Average,  as  well  as  cases  Avhere  expenses  are 
incurred  for  the  preservation,  saving,  or  rescuing  of  the  cargo,  are  not 
included  in  this  Article. 

Art.  623.  When  a  time  chai'ter  has  been  entered  into,  it  commences, 
in  default  of  an  agreement  to  the  contrary,  from  the  day  following  that 
on  which  the  master  has  given  notice  that  he  is  ready  and  prepared  to 
take  in  cargo,  or  to  proceed  in  ballast ;  should,  however,  in  the  latter 
case,  such  notice  not  have  been  given  on  the  day  before  proceeding  on 
the  voyage,  tlie  freight  shall  be  paid  from  the  day  on  which  such 
voyage  is  commenced. 

When  demurrage  or  days  on  demurrage  have  been  agreed  upon,  the 
freight  per  diem  begins  in  all  cases  only  from  the  day  on  which  the 
voyage  has  been  commenced. 

The  freight  per  diem  terminates  with  the  day  on  which  the  dis- 
charge has  liecn  completed. 

Wljon  the  voyage  is  delayed  oi-  interrupted  without  the  fault  of 
the  sliipowiier,  the  freight  must   be   coiitiiiuod   to  ])i>  paid    fnr  tlic  inter- 


APPENDIX.  l-lTi 

mediate   period,  subject  to   the    provisions   of    the   Articles   GiJO    and 
G40. 

Ait.  624.  A  shipowner  lias  a  lien  upon  the  goods  for  tlie  claims 
mentioned  in  Art.  GIT). 

The  lien  exists  as  long  as  the  goods  are  retained  or  deposited  ;  it 
remains  in  force  even  after  the  delivery,  if  it  is  legally  enforced  within 
thii'ty  davs  after  the  comi>]('ti<in  of  suL-h  (U'livery  ;  it  ceases,  however, 
as  soon  as,  previous  to  its  judicial  enforcement,  the  goods  j^ass  into  the 
custody  of  a  third  party,  who  does  not  hold  them  on  belialf  of  the  con- 
signee. 

Ar-t.  G25.  In  case  of  a  dispute  concerning  the  claims  of  the  sliip- 
owner,  the  latter  is  bound  to  give  up  the  goods  as  soon  as  the  sum  in 
dispute  lias  been  deposited  witli  a  law  court  or  any  other  authority  or 
institution  empowered  to  receive  deposits. 

After  the  delivery  of  the  goods  the  shipowner  is  entitled  to  receive 
tlie  sum  so  deposited,  on  giving  sufficient  security  for  it. 

Art.  626.  As  long  as  the  lien  of  the  shipowner  exists,  the  law  court 
may,  at  liis  request,  decree  tliat  the  whole  or  a  proportionate  part 
of  the  goods  be  sold  by  public  auction  for  the  satisfaction  of  his 
claims. 

The  shipowner  may  exercise  this  riglit  also  against  the  other 
creditors  and  the  assignees  of  any  bankrupt  proprietor  of  the  goods. 

Before  the  decree  of  sale  is  issued,  the  court  shall  give  the  interested 
parties,  in  case  they  are  present  at  the  place,  an  opportunity  to  be 
heard  respecting  such  request  of  sale. 

Art.  627.  When  the  shipowner  has  parted  with  the  goods,  he  can- 
not make  the  charterer  responsible  for  any  such  claims  as  he  may  have 
against  the  consignee  (Art.  615).  Only  in  case  the  charterer  would 
make  a  profit  out  of  the  loss  of  the  shipowner  can  any  allowance  take 
place. 

Art.  628.  When  the  shipowner  has  not  delivered  the  goods,  and 
avails  himself  of  the  right  stipulated  in  the  first  section  of  Art.  626, 
without,  however,  being  fully  compensated  by  the  sale  of  such  goods, 
he  can  make  the  charterer  responsible  for  so  much  of  his  claim  arising 
out  of  the  contract  of  affreightment  made  between  him  and  the 
charterer,  as  had  not  been  previously  satisfied. 

Art.  629.  In  case  the  consignee  does  not  take  delivery  of  the  goods, 
the  charterer  is  obliged  to  satisfy  the  shipowner  for  the  freight  and  his 
other  claims,  according  to  the  contract  of  affreightment. 

Should  delivery  of  the  goods  be  taken  by  the  charterer,  the  Articles 
593-626  apply  in  such  a  manner  that  the  charterer  takes  the  place  of 
the  consignee  named  in  these  articles.     In  such  a  case,  the  shipowner 


726  MARITIME   LEGISLATION. 

has  more  particularly  the  right  of  retention  and  lien  in  respect  to  liis 
claims  upon  the  goods,  in  conformity  with  Articles  G2-4,  625,  626,  as 
well  as  the  right  stipulated  in  Art.  616. 

A7-f.  630.  The  conti-act  of  affreightment  is  at  an  end,  and  neither 
party  is  bound  to  indemnify  the  other,  if,  before  the  commencement  of 
the  voyage,  and  through  an  unforeseen  incident — 

(1)  The  vessel  is  lost,  particularly — 

If  it  is  lost  by  accident. 

If  it  has  been  condemned  as  incapable  or  unworthy  of  repair 

(Art.   444),  and  if,  in  the  latter  case,  it  is  sold  without 

delay  by  public  auction. 
If  it  is  captured  by  pirates. 

If  it  is  seized  or  detained  and  condemned  as  good  prize. 
Or, 

(2)  The  goods  described  not  merely  by    their   class   or   sort    but 

specially  defined  in  the  contract  of  affreightment  are  lost. 
Or, 

(3)  The  goods,  although  not  specially  defined  in  the    contract    of 

affreightment,  are  lost  after  they  have  been   delivered  on 
board,  or  received   by  the  master  at  the  loading  berth  in 
order  to  be  taken  on  board. 
Should,  however,  in  the  last-mentioned  case  (No.  3)  the  loss  of  the 
goods  have  occurred  within  the  lay-days  (Art.  580),  the  contract  is  not 
to  be  considered  at  an  end,  in  case  the  charterer  has  without  delay 
declared  his  readiness  to  deliver  other  goods  (Art.  563)  instead  of  those 
lost,  and  commenced  such  delivery  within  the  lay-days.     He  is  bound 
to  complete  the  shipment  of  such    other   goods  within   the   shortest 
possible  time,  to  bear  any  additional  cost  arising  in  consequence  of  any 
such  shipment,  and  to  indemnify  the  shipowner  for  any  damage  result- 
ing therefrom  in  so  far  as  the  lay-days  have  been  exceeded. 

Art.  631.  Either  party  can  withdraw  from  the  contract  without 
being  liable  for  damages — 

(1)  When  before  the  commencement  of  the  voyage — 

The  vessel  is  placed  under  embargo,  or  taken  possession  of 

for  the  service  of  the  country  or  a  foreign  power. 
The  trade  with  the  port  of  destination  is  prohibited. 
The  loading  port  or  the  port  of  destination  is  blockaded. 
The  exportation  of  the  goods,  to  be  shipped  according  to  the 
contract  of  affreightment,  from  the  port  of  loading,   or 
their  importation  into  the  port  of  destination  is  prohibited. 
The  vessel  is  by  a  Government  order  prevented  from  jiutting 
to  sea,  or  tlie  voyage,  or  the  transmission  of  the  goods  to 


APPENDIX.  727 

be  shipped  according  to  tlie  contract  of  affreightment,  is 
prohiijitcd. 
In  .mU  foi'cgoing  cases,  however,  the  Govei'iiment  order  jus- 
tifies the    Avitlidruwal  from   tlie  conti'/ict,   only  when  the 
impediment  that  has   arisen   is  apparently   not  of    short 
duration. 
(■J)  When,  before  tJie  commencement  of  the  voyage,  a  war  has  been 
declared  in  consequence  of  wliich  the  vessel,  or  the  goods  to 
be   shipped  according  to   the   contract  of  aflreightment,  or 
both,  can   no  longer  be  consiilered  free,  and  would  be  liable 
to  risk  of  captuie. 
The  exercise  of  the  right  granted  to  the  charterer  in  Art.  5G3  is 
not  excluded  in  sucli  cases  as  are  piox  ided  for  l)y  the  above  enactment. 
Art.  G32.  The  contract  of  aH'reightment  is  terminated  when,  after 
the  commencement  of  the  voyage,  the  vessel  is  lost  by  an  unforeseen 
incident  (Art.  630,  No.  1). 

The  charterer  sliall,  however,  pay  such  proportion  of  the  freight 
for  the  goods  saved  or  rescued,  as  the  actually  performed  part  of  the 
voyage  may  bear  to  the  entire  voyage  (distance  freight). 

No  claim  for  distance  freight  shall  exceed  the  value  of  the  goods 
saved. 

Art.  633.  In  the  calculation  of  the  distance  freight  is  to  be  taken 
into  consideration  not  only  the  proportionate  distance  already  performed 
to  that  still  to  be  completed,  but  likewise  the  comjoarative  proportion 
of  expenditure  in  cost,  time,  danger,  and  labour  ordinarily  connected 
with  the  part  of  the  voyage  already  performed  to  that  still  to  be  com- 
pleted. 

Should  the  parties  not  be  able  to  agree  on  the  amount  of  the  dis- 
tance freight  due,  the  judge  has  to  decide  upon  it  at  his  discretion. 

Art.  63-1.  The  dissolution  of  the  contract  of  aflreightment  alters 
nothing  in  the  obligation  of  the  master  to  take  care  of  the  cargo  in  the 
absence  of  the  parties  interested,  even  after  the  loss  of  the  vessel 
(Articles  504-506).  The  master  is,  therefore,  justified  and  obliged,  and 
in  urgent  cases  even  without  pi'evious  inquiry,  as  circumstances  may 
require,  either  to  forward  the  cargo  to  the  port  of  destination  in  another 
vessel  for  account  of  the  parties  concerned,  or  to  have  it  stored,  or  sold, 
and,  in  case  of  its  being  forwarded,  or  stored,  to  sell  a  portion  thereof 
for  the  purpose  of  realising  the  funds  necessary  thereto  and  to  its  pre- 
servation, or  in  case  of  its  being  forwarded,  to  take  a  bottomry  bond 
on  the  whole  or  a  part  of  it. 

The  master  is,  however,  not  obliged  to  part  with  the  cargo,  or  to 
deliver  it  to  another  master  for  the  purpose  of  its  being  for\viirded,  un- 


723  MAPJTBIE   LEGISLATION. 

less  the  distance  freight  as  well  as  all  other  claims  of  the  shipowner 
(Art.  615),  and  the  contributions  due  from  the  cargo  for  General 
Avera<^e,    salvage  and    assistance,   and  bottomry,  have    been  paid   or 

secured. 

The  shipowner  is  responsible  for  the  fulfilment  of  the  duties  de- 
volvin'T  on  the  master  according  to  the  first  section  of  this  Article,  to 
the  extent  of  the  value  of  the  ship,  so  far  as  anything  has  been  saved 
of  it,  and  of  the  freight. 

Art.  635.  "When  the  goods  are  lost  by  any  accident  after  the  com- 
mencement of  the  voyage,  the  contract  of  affreightment  is  at  an  end, 
■without  either  party  being  liable  to  damages  ;  the  freight  especially 
shall  not  be  paid  either  totally  or  partially  unless  the  conti'ary  has  been 
enacted  by  la-w  (Art.  619). 

Ai't.  636.  When,  subsequent  to  the  commencement  of  the  voyage, 
anv  of  the  incidents  occur  to  which  reference  is  made  in  Art.  631, 
either  party  has  a  right  to  withraw  from  the  contract  without  being 
liable  to  damages. 

When,  however,  any  of  the  incidents  mentioned  in  Art.  631,  No.  1, 
have  occurred,  the  parties  have,  before  being  able  to  withdraw,  to  wait 
for  the  removal  of  the  impediment,  three  or  five  months  respectively, 
according  as  the  vessel  is  in  a  European  or  in  a  non-European  port. 

Such  period  shall  be  calculated  from  the  day  of  receiving  notice  of 
the  impediment,  if  the  master  is  then  at  a  port,  or  from  that  day  on 
wliich,  after  having  received  such  notice,  he  first  reaches  a  port  with 
the  vessel. 

The  discharge  of  the  vessel  shall,  in  default  of  an  agreement  to  the 
contrary,  take  place  at  the  port  at  which  it  is  staying  at  the  time  of  the 
receipt  of  the  notice  of  withdrawal. 

Tlje  charterer  is  bound  to  pay  distance  freight  for  such  portion  of 
the  voyage  as  is  actually  performed  (Articles  632,  633). 

When,  in  consequence  of  such  impediment,  the  vessel  has  returned 
to  the  port  of  departure  or  to  any  other  port,  in  calculating  the  dis- 
tance freight  the  nearest  point  to  the  port  of  destination,  which  the 
vessel  had  reached,  shall  be  taken  as  the  basis  for  ascertaining  the 
distance  actually  performed. 

The  master  is  likewise  bound  to  act,  in  any  such  cases,  before  and 
after  the  dissolution  of  the  contract  of  affreightment,  in  tlie  interest  of 
the  cargo,  in  conformity  with  the  Articles  501-506  and  634. 

Art.  637.  When  the  vessel,  after  taking  in  its  cargo,  is  detjiined  in 
the  [)ort  of  loading  before  the  commencement  of  the  voyage,  or  in  an 
intermediate  poit  fjr  in  a  port  of  refuge  after  its  commencement,  by 
anv  (if  1  lie  cnicrgfMicies  mcntiDiicd  in  Art.  CuW,  th(!n  tJio  expenses  nf  such 


APPENDIX.  7-2Q 

detention  (even  if  tlie  requirements  of  General  Average  are  not  present) 
are  divided  among  sliip,  frciglit,  and  cargo,  according  to  tlie  principles 
of  General  A\erage,  whether  the  contract  is  thereby  put  an  end  to,  or 
afterwards  completely  fulfilled.  The  expenses  of  the  detention  include 
all  the  expenses  enumerated  in  the  second  clause  of  Art.  708,  No.  4  ; 
but  those  of  putting  into  and  leaving  port  only  when  the  vessel  has 
put  into  a  port  of  refuge  on  account  of  the  obstacle. 

Art.  G38,  When,  before  the  commencement  of  the  voyage,  only  part 
of  the  cargo  has  met  with  an  incident,  which,  if  it  had  extended  over  the 
whole  cargo,  would,  according  to  Ai'ticles  G30  and  G.31,  have  dissolved 
the  contract,  or  have  entitled  the  parties  to  withdraw  from  it,  the  char- 
terer is  only  authorised  either  to  ship  other  goods  instead  of  those  con- 
tracted for,  provided  the  shipowner  is  not  placed  at  a  disadvantage  by 
carrying  them  (Art.  563),  or  to  withdraw  from  the  contract  on  payment 
of  one-half  of  the  stipulated  freight,  and  all  other  claims  of  the  ship- 
owner (Articles  581  and  582).  In  exercising  these  rights,  the  charterer 
is,  however,  not  bound  to  observe  the  time  otherwise  prescribed.  But 
he  is  bound  to  declare  without  delay  which  of  these  two  alternatives 
he  intends  to  adopt,  and  if  he  decides  upon  the  shipment  of  other  goods, 
to  effect  the  same  within  the  shortest  possible  time,  as  well  as  to  pay 
any  additional  expenses  of  such  shipment,  and,  should  the  lay-days 
have  been  exceeded,  to  make  good  the  damage  arising  to  the  shipowner 
in  consequence  thereof. 

When  he  avails  himself  of  neither  of  these  alternatives,  he  must  pay 
the  full  fi"eiglit  for  that  part  of  the  cargo  to  which  the  incident  applies. 
At  all  events,  he  is  bound  to  take  out  of  the  ship  that  part  of  the  cargo 
which  is  no  longer  free  in  consequence  of  war,  prohibition  of  importa- 
tion and  exportation,  or  of  a  Government  order. 

When  the  incident  occurs  after  the  commencement  of  the  voyage, 
the  charterer  shall  pay  the  full  freight  for  such  portion  of  the  cargo  as 
is  concerned  therein,  even  when  the  master  has  been  compelled  to  dis- 
charge such  portion  in  a  different  port  from  the  port  of  destination,  and 
when  he  has  subsequently  continued  the  voyage  with  or  without  delay. 

The  provisions  of  Articles  618  and  619  are  not  afi'ected  by  this 
Article. 

Art.  639.  The  delay  of  the  voyage  caused  by  natural  events  or  other 
incidents  before  or  after  its  commencement  has,  except  in  the  casos  of 
Articles  631-638,  no  influence  upon  the  rights  and  duties  of  the  con- 
tracting parties,  unless  the  apparent  object  of  the  contract  should 
thereby  have  been  frustrated. 

The  charterer  is,  however,  authorised,  during  every  delay  caused  by 
an  incident,  and  which  appears  likely  to  be  of  considerable  duration,  to 


7.30  MAIUTIME    LEGISLATION. 

discharge  the  goods  already  laden  in  the  ship  at  his  own  risk  and  ex- 
pense, and  on  giving  security  for  their  being  re-shipped  in  good  time. 
If  he  omits  to  re-ship,  he  is  bound  to  pay  the  full  freight.  In  any  case 
he  is  answerable  for  all  damages  occasioned  Ijy  any  discharge  originated 
bv  him.  In  case  the  delay  has  arisen  by  a  Government  order,  no  freight 
shall  be  paid  during  such  delay,  if  the  ship  was  under  time  charter 
(Art.  6i'3). 

Art.  640.  In  case  the  vessel  must  be  repaired  during  the  voyage,  the 
charterer  may,  at  his  option,  either  take  delivery  of  the  whole  cargo  at 
the  place  where  the  vessel  is  staying  on  paying  the  full  freight  and  the 
other  claims  of  the  shipowner  (Art.  615)  and  on  paying  or  securing  the 
claims  stated  in  Art.  616,  or  he  may  wait  until  the  repairs  have  been 
completed.  In  the  latter  case  no  freight  is  due  under  a  time  charter 
during  the  progress  of  the  repairs. 

Art.  64:L  Should  the  contract  of  affreightment  be  dissolved  pursuant 
to  Articles  630-636,  the  expenses  of  unloading  from  the  vessel  are  borne 
by  the  shipowner,  and  all  other  expenses  of  the  dischai  ge  by  the  char- 
terer, When,  however,  the  cargo  only  has  been  affected  by  the  incident, 
the  whole  of  the  expenses  of  the  discharge  are  borne  by  the  charterer. 
The  same  rule  applies  if,  in  the  case  of  Art.  638,  part  of  the  cargo  is 
discharged.  When,  in  such  a  case,  it  was  necessary  to  put  into  a  port 
for  the  purpose  of  discharging,  the  charterer  shall  also  bear  the  port 
charges. 

Art.  642.  The  Articles  630-641  apply  likewise,  should  the  vessel  have 
to  proceed  in  Ijallast  to  the  port  of  shipment  for  the  purpose  of  taking  in 
the  cargo.  In  this  case,  however,  the  voyage  is  not  considered  to  have 
begun  before  it  has  actually  commenced  from  the  loading  port.  Has 
the  contract  been  dissolved  subsequently  to  the  vessel  having  reached 
the  loading  port,  but  before  the  actual  commencement  of  the  voyage 
thence,  the  slupowner  shall  receive  for  the  ballast  voyage  an  indemnity 
to  be  fixed  according  to  the  principles  of  distance  freight  (Art.  633). 

In  other  cases  of  compound  voyages  the  above  Articles  shall  apply, 
unless  the  nature  and  contents  of  the  contract  stipulate  anything  to  the 
contrary. 

Art.  643.  Should  the  contract  not  extend  to  the  whole  of  the  vessel, 
but  oidy  to  a  proportionate  part,  or  to  a  specially  defined  space  of  the 
same  or  to  a  general  cargo,  the  Articles  630-642  apply,  subject  to  the 
following  modifications,  viz. — 

(I)  In  the  cases  of  Articles  631  and  636  either  party  is  justified  in 
withdrawing  from  the  contract  innnediately  after  the  occur- 
rence of  the  impediment  and  without  regard  to  its  dura- 
tion. 


APPENDIX.  7;il 

(2)  Til  the  case  of  Art.  G38  the  charterer  cannot  exercise  the  riglit 

of  "withdrawing  from  the  contract. 

(3)  In  the  case  of  Art.  639,  the  charterer  has  only  the  right  of  tem- 

porary discharge  when  all  other  charterers  give  their  consent. 

(4)  In  tlie  case  of  Art.  640,  the  charterer  can  only  take  delivery  of 

the  goods,  on  payment  of  the  full  freight  and  all  other  claims, 
if  during  the  repairs  these  goods  had  at  any  rate  to  be  dis- 
charged. 
The  provisions  of  Articles  588  and   590  are  not  affected  ]>y  this 
enactment. 

Art.  644.  After  the  completion  of  each  separate  shipment  the  master 
shall  sign  without  delay  and  on  return  of  the  provisional  receipt  that 
may  have  been  given  on  delivery  of  the  goods,  as  many  bills  of  lading 
as  the  shipper  may  demand. 

All  copies  of  the  bills  of  lading  must  be  identical,  bear  the  same 
date,  and  state  how  many  copies  have  been  issued.  The  master  is  en- 
titled to  demand  from  the  shipper  a  copy  of  the  bill  of  lading  bearing 
the  latter's  signature. 

Art.  645.  The  bill  of  lading  contains — 

(1)  The  name  of  the  master. 

(2)  The  name  and  nationality  of  the  vessel. 

(3)  The  name  of  the  shipper. 

(4)  The  name  of  the  consignee. 

(5)  The  port  of  lading. 

(G)  The  port  of  discharge,  or  the  place  at  which  orders  for  the  same 
are  to  be  obtained  (port  of  call). 

(7)  The  description,  quantity,  and  marks  of  the  goods  shipjied. 

(8)  The  stipulations  respecting  the  freight. 

(9)  The  place  and  date  on  which  it  has  been  issued. 

(10)  The  number  of  the  copies  issued. 

Art.  646.  When  no  agreement  to  the  contrary  has  been  made,  the 
bill  of  lading  can  be  issued  at  the  demand  of  the  shipper  to  the  order 
of  the  consignee  or  simply  to  order.  In  the  latter  case,  the  word 
'  order  '  means  the  order  of  the  shipper. 

The  bill  of  lading  may  also  name  the  master  as  consigiiee. 

Art.  647.  The  master  is  bound  to  deliver  the  goods  at  the  port  of 
discharge  to  the  legal  holder  of  even  only  one  copy  of  the  bill  of  lading. 
The  party  who  is  designated  as  consignee  in  the  bill  of  lading,  or  to 
whom  the  bill  of  lading,  in  case  it  is  issued  to  order,  has  been  trans- 
ferred by  endorsement,  is  to  be  considered  as  legally  entitled  to  receive 
the  goods. 

Art.  648.  Should  sevei-al  legal  holders  of  bills  of  lading  apply  for  such 


732        '  MARITLME    LEGISLATION. 

goods,  the  master  shall  refuse  delivery  to  all  of  them,  deposit  the  goods 
under  legal  custody  or  in  some  other  safe  manner,  and  infoiTii  thereof 
those  holders  of  the  bills  of  lading  who  did  apply,  stating  the  reasons 
for  such  proceedings. 

In  case  the  o-oods  are  not  deposited  in  legal  custody,  the  master  may 
cause  a  public  document  to  be  executed  stating  his  proceedings  and  his 
reasons  for  the  same,  and  the  outlay  thereby  occasioned  is  to  be  re- 
covered from  the  goods  in  the  same  manner  as  the  freight  (Art.  626). 

Art.  619.  The  act  of  handing  over  bills  of  lading  issued  to  order,  to 
the  parties  who  would  thereby  be  authorised  to  take  delivery,  after 
having  actually  shipped  the  goods  therein  specified,  is  of  the  same  legal 
consequences  respecting  the  acquisition  of  the  rights  depending  on  the 
delivery  of  the  goods  as  the  delivery  of  the  goods  themselves. 

Art.  650.  In  case  several  copies  of  a  bill  of  lading  to  order  have 
been  issued,  the  holder  of  one  of  them  cannot  enforce  the  legal  rights 
acquired  by  the  foregoing  Article  through  its  transfer,  to  the  prejudice 
of  a  party  who  on  production  of  another  copy  obtained  delivery  of  the 
goods  from  the  master  in  conformity  with  Art.  647,  before  the  holder 
of  the  copy  first  referred  to  has  claimed  their  delivery. 

Ai-t.  651.  Should  several  holders  of  bills  of  lading  present  themselves 
before  the  master  has  parted  with  the  goods,  the  latter  shall,  in  so  far 
as  their  rights  arising  out  of  the  bills  of  lading  are  irreconcilable  one 
with  the  other,  give  the  preference  to  that  holder  whose  bill  of  lading 
was  first  received  from  the  common  endorser  of  all  of  them  in  such  a 
way  as  to  authorise  his  taking  possession  of  the  goods. 

When  a  copy  has  been  sent  to  another  place,  the  time  of  so  dis- 
patching it  is  to  be  considered  the  time  of  delivery. 

Art.  652.  The  master  is  only  obliged  to  deliver  the  goods  on  return 
of  a  copy  of  the  bill  of  lading  upon  which  the  delivery  of  the  said  goods 
is  duly  certified. 

Art.  653.  The  bill  of  lading  is  decisive  for  the  legal  position  of  the 
shipowner  and  the  consignee  of  the  goods  towards  each  other  ;  more 
especially  the  delivery  of  the  goods  to  the  consignee  shall  take  place  in 
accordance  with  the  contents  of  the  bill  of  lading. 

Provisions  of  the  contract  of  affreightment  not  embodied  in  the 
bill  of  lading  have  no  legal  effect  as  against  the  consignee,  unless 
special  reference  has  been  made  to  them.  When  such  reference  has 
l)een  made  respecting  the  freight  to  the  contract  of  aflfreightment  (for 
in.stance,  V)y  the  words  '  freight  as  per  charter-party  ')  the  stipulations 
as  to  the  time  for  discharging,  the  days  on  demurrage  and  the  demur- 
rage are  not  con.sidered  to  be  therein  included. 

As  regards  tlic  legal  position  of  tlic  sliipownor  and  the  charterer 


APPENDIX.  733 

towards  each  otlier,  the  clauses  of  the  contract  of  affreightment  remain 
conclusive. 

Art.  654.  The  shipowner  is  responsible  to  the  consignee  for  the 
correctness  of  the  description  of  the  goods  shipped,  as  contained  in  tlie 
hill  of  lading.  This  liability  is,  however,  limited  to  the  payment  of 
such  difference  of  value  as  may  appear  between  the  actual  state  of  the 
goods  and  their  description  in  the  bill  of  lading. 

Art.  G^^r>.  The  liability  of  the  shipowner  as  stipulated  in  the  fore- 
going article  likewise  takes  effect  in  case  the  goods  have  been  delivered 
to  the  master  in  packing,  or  in  closed  packages. 

Should  this  be  at  the  same  time  apparent  from  the  bill  of  lading, 
the  shipowner  is  not  responsible  to  the  consignee  for  the  correctness  of 
the  description  of  the  goods  therein  contained,  provided  he  proves  that 
notwithstanding  the  proper  attention  of  a  careful  master,  such  incor- 
rectness of  the  description  in  the  bill  of  lacing  could  not  have  been 
found  out. 

The  liability  of  the  shipowner  is  not  removed  by  the  fact  that  the 
identity  of  the  goods  delivered  with  those  received  may  not  be  disputed, 
or  that  the  same  may  be  proved  by  the  shipowner. 

Art.  G^)6.  Should  any  goods  be  delivered  to  the  master  packed  or 
in  closed  packages,  he  may  add  on  the  bill  of  lading  the  words 
'  Contents  unknown.' 

When  the  bill  of  lading  contains  these  or  any  other  words  to  the 
same  effect,  the  shipowner  is,  in  case  of  any  difference  between  the 
contents  deli\'ered,  and  those  stated  in  the  bill  of  lading,  only  so  far 
answerable  as  it  is  proved  against  him,  that  he  really  received  other 
contents  than  those  delivered. 

Art.  657.  Unless  the  goods  described  in  the  bill  of  lading  by 
number,  measure  or  weight,  have  been  really  counted,  measured  or 
weighed  to  the  master  on  delivery,  he  may  add  on  the  bill  of  lading 
the  words  '  Number,  measure,  weight  unknown.'  When  the  bill  of 
lading  contains  these  or  words  to  the  same  effect,  the  shipowner  is  not 
answerable  for  the  correctness  of  the  statements  in  the  bill  of  ladin» 
respecting  the  number,  measure,  or  weight  of  the  goods  delivered  to 
him. 

Art.  658.  In  case  the  freight  has  been  stipulated  by  numbei', 
measure,  or  weight,  and  when  such  number,  measure,  or  Avei^ht  has 
been  stated  in  the  bill  of  lading,  such  statement  shall  be  taken  as  the 
basis  for  the  calculation  of  the  freight,  unless  the  bill  of  lading  contains 
a  provision  to  the  contrary.  The  words  '  Number,  measure,  weio-ht 
unknown,'  or  others  to  the  same  effect,  are  not  considered  to  be  such 
provisions  to  the  contrary. 


734  MArailME    LEGISLATION. 

Art.  6o9.  Should  the  bill  of  lading  contain  the  clauses,  'Free  from 
breakage,'  or  Tree  from  leakage,'  or  '  Free  from  damage,'  or  any  other 
addition  to  the  same  effect,  the  shipowner  is  not  answerable  for  break- 
age or  leakage  or  damage,  unless  it  can  be  proved  to  have  been  caused 
by  the  fault  of  the  master  or  another  person  for  whom  the  shipowner 
is  responsible. 

Art.  660.  In  case  any  goods  have  been  delivered  to  the  master 
which  are  visibly  damaged,  in  bad  condition,  or  badly  packed,  he  has 
to  state  these  defects  in  the  bill  of  lading  ;  otherwise  he  is  responsible 
to  the  consignee,  although  the  bill  of  lading  may  contain  one  of  the 
clauses  mentioned  in  the  foregoing  Article. 

Art.  661.  After  a  bill  of  lading  has  been  issued  to  order,  the  master 
cannot  comply  with  any  instructions  of  the  shipper  concerning  the 
returning  or  delivery  of  such  goods,  unless  all  copies  of  such  bill  of 
lading  are  returned  to  him. 

The  same  rule  applies  to  any  demand  made  by  any  holder  of  a  bill 
of  ladiiig  for  delivery  of  goods  previous  to  the  arrival  of  the  master  at 
the  port  of  destination. 

Should  he  act  in  contravention  of  these  provisions,  he  remains 
liable  to  any  legal  holder  of  the  bill  of  lading. 

In  case  the  bill  of  lading  has  not  been  issued  to  order,  the  master 
shall  return  or  deliver  such  goods  even  without  the  production  of  a 
copy  of  the  bill  of  lading,  if  the  shipper  and  the  consignee  named  in 
such  bill  of  lading  have  expressed  their  pi'oper  consent  to  the  returning 
or  the  delivery  of  such  goods.  When,  however,  all  the  copies  of  the 
bill  of  lading  are  not  returned,  the  master  can  pi-eviously  demand 
security  for  any  losses  which  might  arise  in  consequence  thereof. 

Art.  662.  The  provisions  of  Art.  661  apply  likewise  when  the 
contract  of  affreightment  is  dissolved,  before  the  port  of  discliarge 
lias  been  reached,  in  consequence  of  any  incident  contemplated  by 
Articles  630  643. 

Art.  663.  The  enactments  of  Articles  478,  479,  and  502  remain 
applicable  as  regards  the  liabilities  of  the  master  upon  any  contracts 
of  afl'reightment  concluded  and  any  bills  of  lading  issued  by  him. 

Art.  664.  In  case  any  sub-contracts  of  affreightment  have  been 
concluded,  the  shipowner,  and  not  the  party  letting  the  ship  under 
such  sub-contracts,  is  answerable  to  the  extent  of  ship  and  freight  for 
tlie  fulfilment  of  the  sub-contract  of  affreightment  in  so  far  as  its  exe- 
cution belongs  to  the  proper  functions  of  the  master  and  has  been  so 
und(!rtaken  by  liirn,  particularly  in  consequence  of  his  receiving  goods 
and  issuing  bills  of  lading  (Art.  4.'12). 

W'lictlirr,  ;ui(l  liow  far,  the  sliijKtwiicr,  or  tlie  })ai'ty  letting  the  ship 


APPENDIX.  735 

under  such  sub-contract,  can  be  niacle  ans'Aerable  by  the  sub-charterer 
in  all  otlier  respects,  and  whether  in  the  latter  case  the  party  letting 
the  sliip  under  such  sub-contract  is,  without  limitation,  answerable  for 
its  fulfilment,  or  whether  he  only  assumes  the  limited  liability  of  the 
owner  to  the  extent  of  ship  and  freight,  shall  not  be  aflected  by  the 
fore<coing  enactments. 


SIXTH   PART. 


Concerning  all  Matters  relating  to  Freight  for  the  Conveyance  of 
Passengers. 

Art.  G65.  Should  the  passenger  have  been  named  in  the  passage 
contract  he  is  not  entitled  to  transfer  the  right  of  passage  to  another 
party. 

Art.  G66.  The  passenger  is  bound  to  comply  with  all  instructions  of 
the  master  concerning  the  rules  on  board  the  vessel. 

Art.  667.  The  passenger  who,  before  or  after  the  commencement  of 
the  voyage,  does  not  go  on  Ijoard  in  due  time,  shall  pay  the  full  passage- 
money,  even  if  the  master  commences  or  continues  the  voyage  without 
waiting  for  him. 

Art.  668.  When,  previous  to  the  commencement  of  the  voyage,  the 
passenger  gives  notice  of  withdrawal  from  the  passage  contract  ;  or 
Avhen  he  dies,  or  when  he  is  compelled  by  illness  or  any  other  incident 
happening  to  his  person  to  remain  behind,  one-half  only  of  the  passage- 
money  shall  be  paid. 

When,  after  the  commencement  of  the  voyage,  notice  of  withdrawal 
is  given,  or  any  of  the  incidents  mentioned  above  occurs,  the  passage- 
money  shall  be  paid  in  full. 

Art.  669.  The  passage  contract  becomes  null  and  void  when  the 
vessel  is  lost  in  consequence  of  a  casualty  (Art.  630,  No.  1). 

Art.  670.  The  passenger  may  Avithdraw  from  the  passage  contract, 
when  in  consequence  of  a  war  breaking  out,  the  vessel  cannot  any 
longer  be  considered  as  free,  and  would  be  exposed  to  the  risk  of 
capture,  or  if  the  ship's  voyage  should  be  delayed  by  a  Government 
order.  The  shipowner  has  likewise  the  right  of  withdrawal  when,  in 
either  of  the  above  cases,  he  gives  up  the  voyage,  or  when  the  vessel  is 
intended  principally  for  the  transport  of  goods,  and  the  adventure  can- 
not be  undertaken,  because,  without  any  fault  on  his  part,  such  goods 
cannot  be  forwarded. 

Art.  671.  In  all  cases  in  which  pursuant  to  Articles  669  and  670 
the  passage  contract  is  dissolved,  neither  party  is  liable  to  damages. 

W^hen,  however,  such  dissolution  takes  place  after  the  commence- 


73G  MARITIME    LEGISLATION. 

ment  of  the  voyage,  the  passenger  shall  pay  passage-money  in  propor- 
tion of  the  performed  part  of  the  voyage  to  the  whole. 

In   calculating'    the   amount    due    the    provisions   of  Art.    G33  are 

decisive. 

Art.  672.  In  case  the  vessel  has  to  be  repaired  during  the  voyage, 
the  passenger  shall  pay  the  passage-money  in  full,  although  he  may  not 
wait  for  the  completion  of  the  repairs.  Should  he  wait  for  the  comple- 
tion of  the  same,  the  shipowner  has  to  provide  him  with  free  lodging 
until  the  voyage  is  resumed,  and  is  likewise  bound  to  continue  to  fulfil 
his  obligations  as  to  subsistence  in  conformity  with  the  passage  con- 
tract. 

When,  however,  the  shipowner  offers  to  convey  the  passenger  to  the 
place  of  destination  by  another  vessel  equally  good,  and  without  preju- 
dice to  any  further  rights,  and  the  passenger  refuses  to  accept  such 
offer,  he  has  no  further  claim  to  be  provided  with  lodging  and  board 
until  the  resumption  of  the  voyage. 

Art.  673.  Beyond  the  passage-money  the  passenger  shall  not  pay 
separately  for  the  conveyance  of  luggage  which,  according  to  the  con- 
tract, he  is  entitled  to  bring  on  board,  unless  an  agreement  to  the 
contrary  has  been  made. 

Art.  674.  The  provisions  of  the  Articles  562,  594,  618  apply  to 
any  passenger's  luggage  brought  on  board. 

When  the  same  has  been  received  by  the  master  or  a  third  party 
especially  appointed  thereto,  the  provisions  of  the  Articles  607,  608, 
609,  610,  611  apply  in  case  of  loss  or  damage. 

The  Articles  564,  565,  566,  and  690  apply  likewise  to  all  articles 
brought  on  board  by  the  passenger. 

Art.  675.  The  shipowner  has  a  lien  for  the  passage-money  on  any 
articles  brought  on  board  by  the  passenger.  This  lien  exists,  however, 
only  so  long  as  such  articles  are  retained  or  deposited. 

Art.  676.  Should  the  death  of  any  passenger  occur,  the  master 
shall,  according  to  the  circumstances  of  the  case,  properly  protect  the 
interests  of  the  heirs  as  to  the  effects  on  board. 

Art.  677.  When  a  vessel  is  chartered  to  a  tliird  party  for  the  con- 
veyance of  passengers,  no  matter  whether  wholly  or  partially,  or  in 
audi  a  manner  that  a  certain  number  of  passengers  shall  be  carried, 
the  enactments  of  the  fifth  part  apply  as  regards  tlie  legal  relations 
between  the  shipowner  and  such  third  party  as  far  as  the  nature  of  the 
case  admits. 

Art.  678.  When,  in  the  following  parts  of  tliis  book,  reference  is 
made  to  tlie  freight,  it  shall  be  considered  to  comprise  also  the  passage- 
monies,  unlfss  tlic  contrary  is  enacted. 


APPENDIX.  737 


ArL  079.  The  laws  of  the  various  countries  concerning  matters  of 
emigration,  even  where  they  contain  enactments  of  civil  law,  are  not 
affected  by  the  enactments  of  this  part. 


SEVENTH     PART. 

Concerning  Bottomry. 


Art.  GHO.  Bottomry,  in  the  sense  of  this  code,  is  a  loan  transaction 
concluded  by  the  master  as  such,  by  virtue  of  the  rights  granted  to  him 
in  this  code,  under  promise  of  a  premium,  and  under  hypothecation  of 
ship,  freight,  and  cargo,  or  of  one  or  more  of  these  oljjects,  in  such  a 
manner  that  the  creditor  can  enforce  his  claims  only  to  the  extent  of 
the  hypothecated  (bottomried)  objects  after  the  arrival  of  the  vessel  at 
the  place  where  the  voyage  for  which  the  transaction  has  been  con- 
cluded shall  terminate  (bottomry  voyage). 

Art.  681.  Bottomry  transactions  may  only  be  concluded  by  the 
master  in  tlie  following  cases,  viz. — 

(1)  While  the   vessel  is  away  from  the  port  of   registry,  for  the 

purpose  of  completing  the  voyage,  in  conformity  with  Articles 
497,  507-509,  and  511. 

(2)  During  the  voyage  in  the  sole  interest  of  the  parties  concerned 

in  the  cargo,  for  the  purpose  of  preserving  and  forwarding 
the  same  in  conformity  with  Articles  504,  511,  and  634. 

In  the  case  of  No.  2  the  master  may  take  bottomry  on  the  cargo 
alone  ;  in  all  other  cases  he  may  take  bottomry  for  the  ship  or  the 
freight  alone,  but  for  the  cargo  only  together  with  ship  and  freight. 

When  a  bottomry  bond  is  given  on  the  ship  without  naming  tlie 
freight,  the  latter  is  not  considered  as  included.  W^lien,  however,  a 
bottomry  bond  on  ship  and  cargo  is  given,  the  freight  is  considered  to 
be  included  in  the  same. 

A  bottomry  bond  on  the  freight  is  admissible  as  long  as  the  latter 
is  exposed  to  any  sea  risk. 

A  bottomry  bond  can  likewise  be  given  for  the  freight  of  that  part 
of  the  voyage  which  has  not  yet  been  commenced. 

Art.  682.  The  amount  of  the  bottomry  premium  may  without  any 
restriction  be  agreed  upon  by  the  contracting  parties. 

In  default  of  an  agreement  to  the  contrary  the  premium  includes 
the  interest  likewise. 

Art.  683.  A  bottomry  bond  shall  be  executed  by  the  master  con- 
cei-ning  the  bottomry  transaction.  Should  this  not  have  been  done  the 
creditor  has  the  &ime  rights  as  he  would  have  if  tlic  master  had  entered 


738  MARITIME   LEGISLATION. 

into  a  simple  credit  transaction  for  the  purpose  of  supplying  any  of  his 

requirements. 

Art.  684.  The  bottomry  lender  can  demand  that  the  bottomry  bond 

sliall  contain — 

(1)  The  name  of  the  bottomry  creditor. 

(2)  The  amount  of  the  principal  of  the  bottomry  debt. 

(3)  The  amount  of  the  bottomry  premium,  or  the  total  amount  of 

the  sum  payable  to  the  creditor. 

(4)  The  description  of  the  objects  hypothecated  by  the  bond. 
(.5)  The  description  of  the  vessel  and  the  master. 

(6)  The  bottomry  voyage. 

(7)  The  time  at  which  the  bottomry  debt  shall  be  paid. 

(8)  The  place  where  the  payment  shall  be  made. 

(9)  The  designation  of  the  document  as  bottomry  bond  embodied 

in  the  document  itself,  or  the  declaration  that  the  debt  has 
been  contracted  as  a  bottomry  debt,  or  any  other  declaration 
sufficiently  showing  the  transaction  to  be  of  the  nature  of 
bottomry. 

(10)  The  circumstances  which  have  necessitated  the  entering  into 

the  bottomry  transaction. 

(11)  The  date  and  place  where  the  document  has  been  executed. 

(12)  The  signature  of  the  master. 

The  signature  of  the  master  shall  be  certified  if  required. 

Aft.  685.  Unless  the  contrary  has  been  agreed  upon,  the  bottomry 
bond  shall,  at  the  demand  of  the  bottomry  lender,  be  executed  to  the 
order  of  the  creditor,  or  simply  to  order.  In  the  latter  case  the  word 
'  order '  signifies  the  order  of  the  bottomry  lender. 

Art.  686.  When  the  necessity  of  concluding  the  transaction  has 
been  established  previous  to  the  execution  of  the  bottomry  bond,  by  a 
document  from  the  consul  of  the  country,  or  from  the  consul  authorised 
to  act  for  the  same,  or  in  default  of  such  consul  from  any  court  of  law 
or  any  other  competent  authority,  of  the  place  of  execution,  or,  in  case 
neither  of  these  exist,  from  the  officers  of  the  vessel,  it  shall  be  con- 
sidered that  the  master  has  been  duly  authorised  to  conclude  the  tran- 
saction to  the  extent  in  question. 

Evidence  to  the  contrary,  however,  shall  be  admissible. 

Art.  687.  Tlie  bottomry  lender  can  demand  the  execution  of  several 
copies  of  the  bottomi-y  bond. 

Should  several  copies  have  been  issued,  the  number  of  such  copies 
has  to  be  stated  in  each  of  them. 

The  bottomry  bond  is  transferabl(>  by  ondorsemeiit,  if  it  lias  boon 
iii;id(r  out  to  order. 


APPENDIX.  739 

The  plea  that  the  master  liacl  not  been  authorised  to  enter  into 
the  transaction  at  all,  or  to  the  extent  in  question,  is  admissible  also 
against  the  holder  by  endorsement. 

Aft.  G88.  Unless  an  agreement  to  the  contrary  has  been  made  in 
the  bottomry  bond  itself,  the  bottomry  debt  is  {)ayable  at  the  port  of 
destinaticni  of  the  b(jttomry  voyage  and  on  tlic  eiglitlj  day  after  the 
arrival  of  the  vessel  in  that  port. 

From  the  day  when  it  falls  due  mercantile  interest  becomes  payable 
upon  the  whole  bottomry  debt  including  the  premium. 

The  foregoing  provision  does  not  apply  when  the  premium  has  been 
stipulated  by  time  ;  the  time  premium  runs,  however,  until  the  pay- 
ment of  the  principal  of  the  bottomry  debt  has  been  efi'ected. 

Art.  689.  The  payment  of  the  bottomry  debt  when  due  cannot 
be  refused  to  the  legal  holder  of  even  only  one  copy  of  the  bottomry 
bond. 

Such  payment  can  only  be  demanded  upon  return  of  such  copy,  on 
which  the  customary  receipt  for  the  payment  is  to  be  attached. 

Art.  690.  In  case  several  legal  holders  of  any  bottomry  bond  apply 
for  payment,  such  payment  shall  be  refused  ;  the  amount  shall,  in  case 
it  is  required  to  obtain  possession  of  the  bottomried  objects,  be  deposited 
with  a  court  of  law,  or  in  any  other  safe  manner  ;  and  those  holders  of 
any  bottomry  bond  who  have  applied  shall  be  informed  of  the  course 
taken  and  of  the  reasons  for  the  same. 

Should  such  amount  not  have  been  deposited  with  a  court  of  law, 
the  depositor  may  cause  a  public  document  to  be  issued  respecting  his 
proceedings,  and  his  reasons  for  the  same,  and  he  may  deduct  the 
expenses  thereby  occasioned  from  the  bottomry  debt. 

Art.  691.  The  bottomry  creditor  is  not  liable  to  contribute  to 
General  or  Particular  Average. 

In  case,  however,  the  bottomried  objects  become,  by  reason  of 
General  or  Particular  Average,  insufficient  for  the  payment  of  the 
bottomry  creditor,  he  shall  bear  the  loss  thereby  caused. 

Art.  692.  All  the  bottomried  oVyects  are  jointly  and  severally  liable 
to  the  bottomry  creditor. 

After  the  arrival  of  the  vessel  at  the  port  of  destination  of  the 
bottomry  voyage,  the  creditor  can  apply  for  an  arrest  of  all  bottomried 
objects  even  before  his  claim  becomes  due. 

Art.  693.  The  master  shall  care  for  the  safe  keeping  and  preserva- 
tion of  the  bottomried  objects  ;  he  shall  not  without  urgent  reasons 
commit  any  act  whereby  the  risk  of  the  bottomry  creditor  is  increased 
or  altered  from  what  he  might  anticipate  when  entering  into  the  con- 
tract. 

3  B  2 


740  MARITIME   LEGISLATION. 

If  lie  acts  conti-ary  to  these  provisions  he  is  answerable  to  the 
bottomry  creditor  for  the  damage  thereby  arising  (Art.  479). 

Art.  694.  When  the  master  has  arbitrarily  changed  the  bottomry 
voyage,  or  when  he  has  arbitrarily  deviated  from  the  proper  course,  or 
when  after  its  termination  he  has  again  exposed  the  bottomried  object 
to  sea  risks  without  having  been  compelled  to  do  so  in  the  interests  of 
the  creditor,  the  master  is  personally  answerable  to  the  creditor  for  the 
bottomry  debt,  so  far  as  the  latter  does  not  receive  his  payment  out  of 
the  bottomried  objects,  unless  he  proves  that  the  non-payment  has  not 
been  caused  through  the  change  of  the  voyage  or  through  the  deviation 
or  through  the  new  sea  risk. 

Art.  695.  The  master  shall  not  deliver  the  bottomried  cargo,  either 
entirely  or  partially,  before  the  creditor  has  been  paid  or  properly  secured, 
otherwise  the  master  is  personally  answerable  to  the  creditor  for  the 
bottomry  debt  so  far  as  he  could,  at  the  time  of  their  delivery,  have 
been  paid  by  the  goods  so  given  up. 

Until  the  contrary  has  been  proved  it  shall  be  considered  that  the 
creditor  could  have  been  paid  in  full. 

Art.  696.  When  in  the  cases  of  Articles  693,  694,  695  the  master 
has  acted  by  directions  from  the  shipowner,  the  provisions  of  the  second 
and  third  sections  of  Art.  479  shall  apply. 

Art.  697.  If  the  amount  of  bottomry  is  not  paid  when  due,  tlie 
creditor  may  apply  to  the  proper  court  to  order  the  sale  of  the  ship 
and  cargo  on  which  bottomry  has  been  taken,  as  also  to  hand  over  the 
bottomried  freight. 

The  action  shall  be  brought,  as  far  as  the  ship  and  freight  are  con- 
cerned, against  the  master  or  owner  ;  as  to  the  cargo,  if  before  its  deli- 
very against  the  master,  after  its  delivery  against  the  consignee,  so  long 
as  it  is  in  his  own  possession,  or  in  the  custody  of  any  person  holding  it 
for  his  account. 

The  creditor  can  make  no  use  of  his  rights  to  the  prejudice  of  a  third 
party  who  has  honCi  fide  become  possessor  of  the  bottomried  cargo. 

Art.  698.  The  consignee,  to  whom  it  is  known  on  taking  delivery  of 
any  Ijottomried  goods,  that  they  are  liable  for  a  bottom i-y  debt,  becomes 
personally  answerable  to  the  creditor  for  the  debt  to  the  extent  of  the 
value  which  the  goods  had  at  the  time  of  their  delivery,  so  far  as  the 
creditor  could  have  been  paid  out  of  the  goods  if  the  delivery  had  not 
taken  place. 

Art.  699.  When  the  adventure  is  given  up  before  the  commencement 
of  the  bottomry  voyage,  the  creditor  may  doinand  immediate  payment 
of  the  l)ottomry  d<;l)t  at  tiie  place  at  which  sucli  bottomiy  has  Ikmmi 
taken  :   ln-iiiiist,  however,  1)C  satisfied  with  a  pi-ojiortioniitc  reduction  of 


APPENDIX.  741 

the  premium  ;  in  lixing  sucli  reduction  tlie  proportion  of  the  danger  sus- 
tained to  tliat  undertaken  shall  be  principally  considered. 

Wlien  the  bottonny  voyage  does  not  terminate  in  the  port  of  de- 
stination, but  in  another  port,  the  bottomry  debt  must  be  paid  in  the 
latter  port  without  deduction  from  the  premium,  after  the  expiration  of 
the  stipulated  time  for  payment  or,  in  default  of  any  agreement,  after 
the  expiration  of  eight  days  (Art.  688).  Such  time  of  payment  to  be 
calculated  from  the  definite  abandonment  of  the  voyage. 

The  Articles  689-G98  apply  likewise  to  the  foregoing  cases  where  the 
contrary  is  not  enacted  by  this  Article. 

Art.  700.  The  application  of  the  provisions  of  this  part  is  not  affected 
by  the  master  being  part  owner  or  sole  owner  of  the  vessel  or  of  the 
cargo,  or  of  both  of  them,  or  by  his  having  entered  into  the  bottomry 
transaction  upon  special  instructions  from  the  parties  concerned. 

Art.  701.  It  is  reserved  to  the  legislation  of  the  various  countries  to 
introduce  regulations  respecting  irregular  bottomry  transactions,  i.e. 
such  as  may  not  have  been  entered  into  by  the  master  as  such  in  tlie 
cases  contemplated  by  Art.  681. 


EIGHTH   PART. 

Concerning  Average. 
First  Division. — General  Average  and  Particular  Average. 

Art  702.  All  damage  intentionally  done  to  ship  or  cargo,  or  both, 
by  the  master  or  by  his  orders,  for  the  purpose  of  saving  both  from  a 
common  danger,  together  with  any  further  damage  occasioned  by  such 
measures  and  likewise  expenses  incurred  for  the  same  purpose,  are 
General  Average. 

General  Average  is  borne  by  ship,  freight  and  cargo  in  common. 

Art.  703.  All  losses  and  expenses  not  belonging  to  General  Average 
but  caused  by  an  accident  are  Particular  Average,  as  far  as  they  do  not 
come  under  Art.  622. 

Particular  Average  is  borne  by  the  owners  of  the  ship  and  cargo 
respectively,  each  for  himself  alone. 

Art.  704.  The  application  of  the  rules  for  General  Average  is  not 
debarred  by  the  fact  that  the  danger  has  been  occasioned  by  the  fault  of 
a  third  party,  or  even  of  one  of  the  parties  interested  in  the  adventure. 

The  party  interested  who  is  in  fault  can,  however,  not  only  make  no 
demand  for  compensation  on  account  of  any  damage  which  is  tliere))y 
sustained,  but  is  likewise  answerable  to  each  contriljutur  for  the  loss 


742  MARITIME   LEGISLATION. 

Avhich  he  suffered  through  such  damage  being  apportioned  as  General 

Average. 

Should  the  danger  have  arisen  through  the  fault  of  one  of  the  crew, 
the  owner  is  likewise  answerable  for  the  consequences  subject  to  the 
conditions  of  Articles  451  and  452. 

Art.  705.  Average  contribution  takes  place  only  when  the  ship  as 
well  as  the  cargo,  each  either  wholly  or  in  part,  have  been  actually 
sived. 

Art.  706.  The  obligation  to  contribute  on  the  part  of  an  article  wliich 
has  been  saved  is  only  then  completely  annulled  when  the  article, 
owing  to  its  having  subsequently  suffered  Particular  Average,  is  entirely 
destroyed. 

Art.  707.  The  right  to  compensation  for  damage  belonging  to  General 
Average  is  only  so  far  set  aside  by  a  Particular  Average  subsequently 
affecting  the  damaged  article  (whether  this  be  again  damaged  or  totally 
destroyed)  as  it  is  proved  that  the  latter  accident  not  only  was  entirely 
independent  of  the  former  but  would  have  likewise  carried  with  it  the 
former  damage  if  this  had  not  already  taken  place. 

If,  however,  before  the  occurrence  of  the  latter  accident  steps  should 
already  have  been  taken  to  reinstate  the  damaged  article,  then  the  claim 
for  reimbursement  holds  good  as  far  as  such  steps  are  concerned. 

Art.  708.  The  following  cases  in  particular  are  General  Average, 
always  supposing  that  the  requirements  of  Articles  702,  704  and  705  are 
complied  with  so  far  as  there  is  nothing  to  the  contrary  specially  directed 
l)y  tliis  Article  : — 

(1)  When  goods,  portions  of  the  ship,  or  articles  belonging  tliercto, 

are  thrown  overboard,  masts  are  cut   away,  ropes  or  sails 
cut  adrift,  anchors,  hawsers,  or  chain-cables  slipped  or  cut 
away. 
These  damages,  as  well  as  any  further  damages  caused  to  ship 
or  cargo  by  such  acts,  belong  to  General  Average. 

(2)  When,  in  order  to  lighten  the  vessel,  the  cargo  or  part  of  it  has 

been  discharged  into  lighters. 

To  General  Average  belong  as  well  the  hire  of  the  lighters  as 
also  any  damage  done  to  sliip  or  cargo  by  discharging  into  the 
lighters  or  by  re-shipping  into  tlie  vessel,  and  any  damage 
wliich  may  have  been  done  to  the  cargo  wliilein  the  lighters. 

If  the  lightening  of  the  vessel  must  have  taken  place  in  the 
ordinary  course  of  the  voyage,  there  is  no  General  Average. 
(;})  When  the  ship  has  been  purposely  run  ashore,  but  only  if  pre- 
vention of  sinking  or  of  capture  was  thereby  intended. 

Tlie  damages  caused  by  the  stranding,  as  well  as  by  the  getting 


APPENDIX.  743 

off,  us  ulso  all  the  expenses  of  getting  off,  belong  to  General 
Average. 
An  average  conti'ihution  is  not  made  if  the  ship  which  has  l>eeii 
stranded  to  avoid  sinking  is  not  got  off,  or  after  being  got  off 
is  found  iiu-apable  of  repair  (Art.  444). 
if  the  ship  has  been  stranded,  without  the  stianding  being 
purposely  done  for  preservation  of  ship  and  cargo,  then  tlie 
damages  cau.sed  l)y  such  stranding  are  not,  but  the  expenses 
occasioned  by  the  getting  off,  and  the  damages  purposely  in- 
flicted on  ship  or  cargo  with  this  object  are.  General 
Average. 

(1)  If  the  vessel  lias  put  into  a  port  of  refuge  in  order  to  avoid  a 
common  danger  threatening  the  ship  and  cargo  in  case  the 
voyage  were  prosecuted,  more  particularly  if  the  putting  into 
port  is  for  the  necessary  repair  of  damage  done  to  the  ship 
during  the  voyage. 
To  General  Average  in  this  case  belong  the  expenses  of  entering 
and  leaving,  the  expenses  attaching  to  the  ship  itself  owing 
to  the  stay,  the  wages  and  provisions  of  the  crew  during  the 
stay,  also  tlie  expense  of  lodging  the  crew  on  shore  if  and  so 
long  as  they  could  not  remain  on  board  ;  further,  if  the  cargo 
must  be  discharged  as  a  consequence  of  the  cause  which  led 
to  the  ship's  putting  into  the  port  of  refuge,  the  expense  of 
discharging  and  re-shipping,  and  the  expense  of  warehousing 
the  cargo  on  shore  up  to  the  time  when  it  might  have  been 
put  on  board  again. 
The  several  charges  for  detention  are  only  admitted  for  the 
time  that  the  cause  of  putting  into  the  port  of  refuge  remains 
in  force.  If  the  cause  is  to  be  found  in  a  necessary  repair 
of  the  ship,  the  charges  for  detention  are  only  admitted  up 
to  that  time  at  which  the  repair  might  have  been  completed. 
The  expense  of  repair  to  the  ship  belongs  to  General  Average 
so  far  only  as  the  damage  which  is  to  be  repaired  is  itself 
General  Average. 

{'^)  When  the  ship  is  defended  against  enemies  or  pirates. 

All  damage  done  to  ship  and  cargo  in  such  defence,  the  ammuni- 
tion expended,  and  in  case  any  of  the  crew  is  Avounded  or 
killed  in  such  defence,  then  the  expenses  of  his  cure  or  burial, 
as  also  the  compensations  to  be  paid  (Articles  523,  524,  549, 
551),  are  General  Average. 

((i)   When  the  vessel  has  been  detained  by  enemies  or  pirates,  and  is 
redeemed  by  payment. 


744  MARITIME   LEGISLATION. 

What  is  f  iven  for  ransom  together  with  the  cost  of  maintenance 
and  release  of  the  hostages  is  General  Average. 
(7)  Losses  and  expenses  incurred  in  obtaining  the  monies  necessary 
for  payment  of  General  Average  during  the  voyage,  or  ex- 
penses incurred   in    apportioning   the   amounts  among   the 
parties  interested,  belong  to  General  Average. 
Among  tliese,  more  particularly  are  to  be  reckoned  the  loss  on 
goods  sold  during  the  voyage,  the  premium  on  a  bottomry 
loan  taken  up  for  the  advance  of  the  necessary  funds,  and, 
when  this  is  not  the  case,  the  premium  of  insurance  or  the 
monies  expended,  the  expenses  of  determining  the  damage 
and  drawing  up  the  adjustment. 
Art.  709.  Not  as  General  Average,  but  as  Particular  Average,  are  to 
be  considered — 

(1)  Losses  and  expenses  incurred  in  procuring  monies  required  in 

consequence  of  a  Particular  Average,  even  if  in  the  course 
of  the  voyage. 

(2)  Expenses  of  reclaiming,  even  if  the  ship  and  cargo  are  both 

reclaimed  together,  and  both  successfully. 

(3)  Damage  done  to  the  ship,  its  appurtenances,  or  the  cargo,  by 

carrying  a  press  of  sail,  even  when  the  press  of  sail    was 
carried  to  avoid  stranding  or  capture. 
Art.  710.  In  cases  of  General  Average,  damages  and  losses  occurring 
to  the  following  articles  are  not  allowed  for  in  making  up  the  statement — 

(1)  Goods  not  laden  under  deck  ;  this  regulation  does  not,  however, 

apply  to  the  coasting  ti-ade,  when  deck  cargoes  are  allowed 
by  the  laws  of  the  various  countries  to  be  carried  in  such 
coa.sting  trade  (Art.  567). 

(2)  Goods  for  which  there  is  no  bill  of  lading,  nor  any  entry  nor  the 

manifest  or  cargo-book. 

(.3)  Valuables,  specie,  and  securities,  respecting  which  proper  notice 
has  not  been  given  to  the  master  (Art.  608). 

Art.  7n.  Damage  done  to  the  vessel  or  its  appurtenances,  belong- 
ing to  General  Average,  must  be  surveyed  and  estimated  by  experts  at 
tlie  port  where  it  is  made  good,  and  before  the  repairs  are  commenced 
if  it  is  done  in  the  course  of  the  voyage  ;  otherwise  at  the  port  where 
tlie  voyage  terminates.  The  estimate  must  include  the  probable  cost 
of  all  requisite  repairs.  If  the  repairs  are  done  in  the  course  of  tlie 
voyage,  the  estimate  determines  the  amount  to  be  allowed  for  th 
daiiiago,  except  when  the  cost  of  completing  such  repairs  is  less  than  the 
estimated  amount.  If  it  was  not  possible  to  make  an  ostinialc,  then 
<li'"  amount  actually  laid  out  on  the  iircrssaiv  repairs  is  conclusive. 


APPENDIX.  745 

So  far  as  the  repairs  are  not  completed  durinj,'  the  voyage  the  esti- 
mate alone  is  conclusive  in  tlie  settlement  of  tlie  damage. 

In  other  cases,  a  deduction  is  made  for  the  difference  between  old 
and  new  of  one-third  of  the  wliole  amount  ;  in  tlie  case  of  chain-cables, 
howevei",  only  one-sixth,  and  on  the  anchors  themselves  no  deduction 
at  all  is  allowed. 

From  tlie  total  amount  are  fuithcr  to  be  deducted  the  proceeds  or 
value  of  the  whole  articles,  if  they  sliall  Ije  in  existence,  whicli  have 
been  or  are  to  be  rei)laced  with  new. 

If    such    a    deduction,  and    also    the  deduction    for    the  diilerence 
Ijetween  old  and  nv.w,  have  to  be  mad(!,  tlie  latter  is  first  to  be  de 
ducted,  and  afterwards  the  otlier  deduction  is  to  be  made  from  the 
remainder. 

Art.  712.  The  full  amount  of  the  repairs,  when  settled  according  to 
the  provisions  of  the  preceding  Article,  is  the  amount  to  Ije  allowed  in 
General  Average  if,  at  the  time  of  sustaining  the  damage,  the  vessel 
had  not  been  afloat  for  a  full  year. 

The  same  rule  applies  in  allowing  for  separate  parts  of  the  sliip, 
and  particularly  for  the  metal  sheathing,  and  for  separate  parts  of  the 
appurtenances,  when  such  parts  have  not  been  in  use  for  a  full  year. 

Art.  713.  The  amount  to  be  allowed  for  goods  which  have  been 
sacrificed  is  determined  by  the  market  price  of  goods  of  the  same  kind 
and  quality  at  the  port  of  destination,  at  the  time  when  the  discharge 
of  tiie  ship  was  commenced. 

If  there  is  no  market  price,  or  in  case  of  uncertainty  as  to  such 
price  or  its  applicability,  more  particularly  with  reference  to  the  quality 
of  the  goods,  the  value  must  then  be  settled  by  competent  persons. 

From  the  value  is  to  be  deducted  whatever  saving  in  freight,  duties 
and  charges  has  resulted  from  the  loss  of  the  goods. 

As  goods  sacrificed  are  to  be  considered,  also,  such  as  have  been 
sold  to  satisfy  General  Average  (Art.  708,  No.  7). 

Art.  71-1.  The  amount  to  be  allowed  for  goods  which  have  suffered 
damage  belonging  to  General  Average  is  determined  by  the  difference 
between  the  value  of  the  goods  in  their  damaged  state  at  tlie  commence- 
ment of  the  discharge  of  the  vessel,  wliich  is  to  be  settled  by  experts 
and  the  market  price,  as  defined  in  the  preceding  Article,  after  deduction 
of  dues  and  charges,  so  far  as  tliese  may  have  been  saved  in  consequence 
of  the  damage. 

Ai't.  715.  Infixing  the  amount  wliich  is  to  be  allowed  (Articles  713, 
714),  a  deduction  is  to  be  made  on  account  of  decrease  of  value  and 
losses  which  may  have  occurred  before,  at,  or  after  the  casualty,  not 
belonjjing  to  General  Average. 


746  MARITIME   LEGISLATION. 

Art.  716.  If  the  voyage  does  not  terminate  with  regard  to  ship  and 
cargo  at  the  port  of  destination,  but  at  another  port,  such  latter  port 
takes  the  place  of  the  port  of  destination  for  the  determining  of  the 
General  Average  allowance  ;  whereas,  if  tlie  voyage  is  terminated  l)y 
the  loss  of  the  ship,  the  place  to  which  the  cargo  is  brought  in  safety 
becomes  the  port  of  destination  in  like  manner. 

Art.  717.  The  allowance  for  freight  not  earned  is  to  be  determined 
by  the  amount  which  would  have  been  due  on  the  sacrificed  goods,  if 
they  had  been  carried  on  by  the  ship  to  the  port  of  destination  ;  or,  if 
the  ship  does  not  arrive  at  the  port  of  destination,  if  they  had  reached 
the  port  where  the  voyage  terminates. 

Art.  718.  The  total  amount  of  the  loss  which  forms  the  General 
Average  is  apportioned  among  ship,  cargo,  and  freight,  in  proportion  to 
their  respective  values. 

Ai-t.  719.  The  ship  with  its  appurtenances  contributes — 

(1)  On  its  value  in  the  condition  in  which  it  was  at  the  end  of  the 

voyage,  when  the  discharge  was  commenced. 

(2)  On  the  amount  allowable  as  General  Average  on  the  ship  and 

its  appurtenances. 

From  the  value  under  No.  1  is  to  be  deducted  tlie  existing  value  of 
those  repairs  and  supplies  which  have  been  made  since  the  occurrence 
of  the  casualty. 

Art.  720.  The  cargo  contributes — 

(1)  On  the  goods  still  existing  at  the  end  of  the  voyage  when  the 

discharge  was  commenced,  or  if  the  voyage  is  terminated  by 
the  loss  of  the  ship  (Art.  71G),  on  the  goods  that  have  been 
brought  into  safety,  so  far  as  at  the  time  of  tlie  casualty 
these  goods,  in  both  cases,  were  on  board  the  vessel  or  a 
lighter  (Art.  708,  Xo.  2). 

(2)  On  the  goods  sacrificed  (Art.  713). 

Art.  721.  In  determining  the  contribution,  the  rate  is  to  be  taken- 

(1)  For  goods  wliich  are  undamaged,  or  the  market  value,  or  the 

value  as  fixed  by  experts  (Art.  71. '5),  of  the  goods  at  the  end 
of  the  voyage,  when  and  where  the  discharge  was  commenced, 
or,  if  the  voyage  is  terminated  by  the  loss  of  the  ship  (Art. 
716),  at  the  time  and  place  of  the  salvage,  after  deducting 
freight,  duties,  and  other  expenses. 

(2)  For  goods  which  liave  been  spoilt  during  the  voyage,  or  have 

suflered  damage  not  belonging  to  General  Average,  on  the 
value,  as  fixed  by  experts  (Art.  7M)  of  the  goods  in  their 
damaged  state  at  the  t'unv.  and  ])lace  stated  in  clause  1  of 
this  section,  after  di'duetion  of  freiglit,  duties,  and  other 
expenses. 


/siB 


APPENDIX.  747 

(3)  For  goods  which  have  been  sacriticed,  on  the  amount  at  wliich 

they  are  estimated  under  Art.  713  for  General  Average. 

(4)  For  goods  which  have  suffered  damage   belonging  to  General 

Average,  tlie  value,  as  estimated  under  clause  2  of  this  sec- 
tion, of  the  goods  in  their  damaged  state,  adding  tliereto  the 
difference  of  value  wliich,  according  to  Art.  714,  is  allowed 
in  General  Average  as  compensation  for  the  damage. 
Art.  722.  Goods  recovered  after  being  jettisoned  are  not  to  contri- 
bute to  a  General  Average  occurring  at  the  same  time  or  subsequently, 
unless  the  owner  of  them  makes  a  claim  for  contribution. 
Art.  723,  The  freight  contributes  on  two  thirds — 

(1)  Of  the  gross  amount  earned. 

(2)  Of   the  amount  estimated    as   General    Average   accordii\g  to 

Art.  717. 

The  laws  of  the  respective  countries  retain  the  powers  of  reducing 
the  above  stipulated  proportion  of  two-thirds  to  one-half. 

Passage-money  contributes  on  the  amount  which  would  have  been 
lost  if  the  ship  had  perished,  after  deducting  the  expenses  which  would 
in  that  case  have  been  saved. 

Art.  724.  If  a  contributory  oliject  is  liable  for  a  claim  arising  out 
of  a  subsequent  casualty,  it  must  only  contribute  on  its  value  after 
deduction  of  this  claim. 

Art.  725.  The  following  do  not  contribute  to  General  Average  — 

(1)  Ammunition  and  provisions  of  the  ship. 

(2)  Wages  and  effects  of  the  crew. 

(3)  Baggage  of  passengers. 

If  objects  of  this  kind  have  been  sacrificed  or  have  sustained 
damage  which  comes  under  General  Average,  compensation  is  made 
for  them  as  provided  by  Articles  713-717  ;  compensation  is,  however, 
not  made  for  private  effects  consisting  of  valuables,  sj^ecie,  or  securities, 
unless  they  have  been  duly  notified  to  the  master  (Art.  608).  Objects 
of  this  kind,  for  which  compensation  is  made,  contribute  on  the  value, 
or  difference  of  value  at  which  they  are  replaced  on  the  adjustment. 

The  objects  enumerated  in  Art.  710  contribute  as  far  as  they  have 
been  saved. 

Money  advanced  on  bottomry  is  not  liable  to  contribute. 

Art.  726.  If  after  the  casualty,  and  before  the  commencement  of 
the  dischai'ge  at  the  end  of  the  voyage,  a  contributory  ol)ject  is  totally 
lost  (Art.  706),  or  partially  lost  or  diminished  in  value,  more  pai-ticu- 
larly  in  the  case  stated  in  Art.  724,  a  corresponding  increase  takes 
place  in  the  amounts  to  be  cojitributed  by  the  remaining  objects. 

If  the  loss^  or  diminution  of  value  occurs  after  the  commencement 


748  :\IAiaTIME    LEGISLATION. 

of  the  discharge,  the  amount  for  which  such  object  is  liable  to  con- 
tribute as  far  as  the  object  is  inadequate  to  the  satisfaction  of  a  claim, 
falls  as  a  loss  on  the  claimant. 

Art.  727.  Claimants  on  account  of  General  Average  have  the  same 
rio'hts  as  ships'  creditors  with  respect  to  the  amounts  due  from  the 
ship  and  freight. 

AVith  respect  to  goods  which  have  to  contribute,  they  have  a  lien 
on  the  separate  goods  for  the  amounts  for  which  each  is  liable.  Such 
lien,  however,  cannot,  after  delivery  of  the  goods,  be  enforced  to  the 
prejudice  of  third  parties,  who  have  bond  fide  come  into  possession  of 
them. 

Art.  728.  An  average  loss  in  itself  does  not  constitute  a  personal 
liability  for  payment  of  the  average  amount. 

The  receiver  of  goods  from  which  a  contribution  has  to  be  received, 
if  such  fact  was  kno"wn  to  him  when  he  received  the  goods,  is,  however, 
personally  liable  for  such  amount  up  to  the  value  of  the  goods  at  the 
time  of  their  delivery,  in  so  far  as  the  amount  could  have  been 
recovered  out  of  the  goods  themselves  if  they  had  not  been  delivered. 

Art.  729.  The  loss  is  to  be  determined  and  apportioned  at  the  port 
of  destmation  ;  or,  if  that  is  not  reached,  at  the  port  where  the  voyage 
terminates. 

Art.  730.  The  master  is  bound  to  cause  the  average  statement  to 
be  made  up  without  any  delay.  If  he  acts  contrary  to  this  obligation, 
he  renders  himself  liable  to  every  party  interested. 

Should  the  preparation  of  the  average  statement  be  unnecessarily 
delayed,  every  party  interested  may  address  a  request  for  such  pre- 
paration and  urge  its  completion. 

Art.  731.  Under  the  jurisdiction  of  this  code,  the  average  statement 
is  to  be  made  up  by  the  persons  regularly  appointed  for  the  purpose, 
or  in  their  absence  by  parties  especially  authorised  by  the  Court 
(average  staters).  (Compare  Article  57,  clauses  1-7  of  the  Prussian 
Introductory  Law.') 


'  Art.  57.  Prussian  IntrodiictorTj  Law.     The  following  regulations  are  hereby 
laid  down  for  the  stating  and  settling  of  averages  :  — 

(1)  As  soon  as  the  average  statement  is  made  up,  the  average  stater  shall  lay 

the  same  before  the  Court  of  Commerce.  It  is  the  duty  of  this  Court  to 
examine  the  statement,  and  if  mistakes  or  omissions  are  found,  to  have 
the  same  corrected  by  the  average  stater. 

(2)  After  the  statement  has  been  examined,  and,  if  necessary,  corrected,  the 

jmrties  who  have  to  contribute,  if  they  have  announced  themselves  to 
the  Court,  or  arc  known  in  other  ways,  more  particularly  by  the  ship's 
l)apcrs  or  cargo  accounts,  are  to  be  invited  to  apjicar  before  a  dei)uty  of 
tiie  Court  un   a  lixed  day  if  tlicy  reside  in  tlie  district  of  the  Court,  or 


APPENDIX.  740 

Every  party  interested  is  bound  to  fuiiiish  the  average  stater  with 
all  documents  necessary  for  making  up  the  statement  as  far  as  tlicy 
maybe  under  his  control,  viz.  :~  charter  parties,  bills  of  lading,  and 
invoices. 

To  the  laws  of  the  respective  countries  is  reserved  the  right  of 
making  furtlier  regulations  respecting  the  drawing  up  of  the  average 
statement  and  the  settling  of  the  same. 

Art.  732.  Security  shall  be  given  to  the  parties  interested  in  the 
cargo  for  the  amounts  due  from  the  ship,  before  the  latter  can  be 
allowed  to  leave  the  port  in  which,  according  to  Art.  729,  the  apportion- 
ment and  arrangement  of  the  loss  is  to  take  place. 

Art.  733.  The  master  is  not  allowed  to  deliver  goods,  from  which  a 
contribution  to  average  may  be  due,  until  the  amount  of  such  contribu- 
tion shall  have  been  paid,  or  security  given  for  the  same  (Art.  616)  ;  in 
default  of  which,  in  addition  to  the  liability  of  the  goods,  he  becomes 
personally  liable  for  the  amounts. 

If  the  master  shall  have  acted  in  accordance  with  instructions 
from  his  owner,  then  the  directions  of  the  second  and  third  parts  of 
Art.  479  are  to  be  acted  upon. 

have  appointed  representatives  there ;  otherwise,  in  the  person  of  an 
oflicial  agent,  who  will  be  appointed  to  act  for  them,  in  order  to  make 
their  several  objections  to  the  statement. 
To  the  summons  is  to  be  attached  the  announcement,  that  any  party  not 
appearing  will  be  considered  to  have  no  objection  to  make  to  the  state- 
ment. 
(8)  If  at  the  stated  time  no  objections  are  made  to  the  statement,  then  the 
Court  shall  confirm  the  same. 

(4)  If  an  interested  party  make  objections,  he  must  prove  them  in  the  sitting 

appointed,  or  must  reserve  the  right  of  putting  in  a  written  statement 
of  his  grievance.  In  the  latter  case  the  statement  must  be  laid  before 
the  Court  within  fourteen  days  :  if  this  should  not  be  done,  it  will  be 
considered  that  the  official  record  of  the  sitting  is  to  serve  as  such 
statement. 
The  ordinary  legal  steps  will  be  taken  by  the  Court  on  the  statement  of 
grievance,  or  should  such  not  have  been  reserved,  or  not  have  been  put 
in  during  the  interval  of  fourteen  days  to  be  allowed  as  above,  then  on 
the  copy  of  the  oflicial  record  of  the  sitting  which  is  to  serve  as  state- 
ment. 

(5)  When  the  objections  which  may  have  been  brought   forward  have  been 

settled  by  a  legal  decision,  or  otherwise,  then  the  Court  shall  proceed  to 
confirm  the  average  statement,  the  same  having  first  been  duly  amended 
in  conformity  with  the  settlement  of  the  objections. 

(6)  When  objections  are  raised  which  only  affect  a  portion  of  the  average  state- 

ment, the  Court  shall  at  once  confirm  the  statement  so  far  as  the  same  is 
not  affected  by  the  objections. 

(7)  When  the  average  statement  has  been  so  confirmed,  immediate  execution 

may  be  granted  upon  it. 


7r,0  MARITIME    LEGISLATION. 

The  lien  wliich  parties  entitled  to  compensation  have  on  the  con- 
tributory goods  is  exercised  for  them  by  the  shipowner. 

Art.  734.  If  the  master  shall  have  given  a  bottomry  bond  on  the 
ca.T"o  or  have  disposed  of  a  part  of  the  same  by  sale  or  otherwise,  in 
order  to  be  able  to  continue  the  voyage,  although  for  an  expense  which 
does  not  belong  to  General  Average,  then  the  loss  which  the  party 
interested  in  the  cargo  may  sustain,  because  his  claim  cannot  be  satis- 
fied, or  can  only  partly  be  satisfied  by  ship  and  freight  (Articles  509, 
510,  613),  shall  be  borne  by  the  whole  of  the  parties  interested  in 
the  cargo,  according  to  the  regulations  laid  down  for  cases  of  General 
Average. 

In  settling  the  loss,  the  compensation  fixed  in  Art.  713  is  decisive 
in  all  cases,  and  particularly  in  such  as  come  under  the  second  part 
of  Art.  613.  Goods  which  have  been  sold  also  contribute  to  General 
Average,  should  such  occur  (Art.  720),  with  the  value  at  which  such 
compensation  may  be  determined. 

Art.  735.  With  respect  to  other  losses  and  charges  to  be  divided 
according  to  the  principles  of  General  Average,  the  necessary  instruc- 
tions are  given  in  Art.  637. 

The  amounts  and  compensations  to  be  paid  under  the  stii^ulations  of 
Articles  637  and  734  are  in  all  respects  placed  on  the  same  footing  as 
payments  and  compensations  in  cases  of  General  Average. 

Second  Division. — Damage  by  Collision. 

Art.  736.  When  two  ships  come  into  collision,  and  either  on  one  or  both 
sides,  in  consequence  of  such  collision,  ship  or  cargo  alone,  or  ship  and 
cargo,  should  be  damaged  or  entirely  lost,  then  in  case  any  one  of  the 
crew  of  either  ship  should  have  occasioned  the  accident  by  any  fault  of 
his  own,  the  owner  of  that  ship  is  answerable  according  to  Articles  451, 
452  for  the  repairs  of  the  damage  which  may  have  been  done  to  the 
other  ship  or  her  cargo  by  the  collision. 

The  owners  of  the  cargo  in  the  two  ships  are  not  liable  to  contribute 
to  the  repairs  of  the  damage. 

The  personal  liability  of  the  crew  for  tlie  consequences  of  their 
faults  is  not  altered  by  this  section. 

Art.  737.  If  no  fault  is  attributable  to  any  of  the  crew  of  either 
vessel,  or  if  the  collision  is  occasioned  by  faults  on  both  sides,  then  no 
claim  can  be  established  for  the  damage  done  to  either  or  both  sliips. 

Art.  738.  The  two  preceding  sections  are  applicable  whether  both 
vessels,  or  either  of  them,  are  under  sail  or  drifting  with  the  current, 
or  :irf  at  ;iiiclior,  or  fastoiod  to  tho  shore. 


APPENDIX.  7ol 

Art.  739.  Wlien  a  ship  wliioli  has  been  damaged  Ijy  collision  sinks 
before  it  can  reach  a  port,  it  is  taken  for  granted  that  the  sinking  of  tlie 
ship  was  a  consequence  of  the  collision. 

Art.  740.  When  the  ship  is  in  charge  of  a  pilot  (where  pilotage  is 
compulsory)  and  the  crew  have  performed  the  duties  required  of  them, 
the  owner  of  the  ship  is  then  not  responsible  for  the  damage  occasioned 
by  a  collision  for  which  the  pilot  is  to  blame. 

Art.  741.  The  provisions  of  this  Article  are  also  applicable  when 
more  than  two  vessels  come  into  collision. 

When  in  such  a  case  the  collision  shall  have  been  occasioned  by  the 
fault  of  any  of  the  crew  of  one  of  the  vessels,  then  the  owner  of  such 
vessel  is  also  answerable  for  damage  which  may  be  occasioned  in  con- 
sequence of  the  second  vessel  tlirough  the  collision  being  driven  into 
collision  with  a  third. 


NINTH  PART. 

Concerning  Salvage  and  Assistance  in  Cases  of  Distress. 

Art.  742.  W^hen  in  case  of  distress  a  ship  or  its  cargo,  being  no 
longer  under  the  control  of  the  crew,  or  having  been  abandoned  by  the 
same,  is  taken  charge  of  either  wholly  or  in  part  by  third  parties  and 
brought  into  safety,  then  such  parties  have  a  claim  for  salvage. 

When  in  any  other  case  than  the  above,  a  ship  or  its  cargo  is 
rescued  from  a  state  of  distress  by  the  help  of  third  parties,  then  such 
parties  have  only  a  claim  for  assistance 

The  crew  of  the  vessel  which  is  lost  or  in  danger  can  have  no  claim 
for  salvage  or  assistance. 

Art.  743.  When  during  the  danger  an  agreement  has  been  made  as 
to  the  amount  of  the  salvage  or  payment  for  assistance,  such  agree- 
ment may  nevertheless  be  disputed  on  the  plea  that  the  amount  agreed 
upon  was  excessive,  and  the  reduction  of  the  same  to  an  amount  more 
in  accordance  with  the  circumstances  of  the  case  may  be  demanded. 

Art.  744.  In  the  absence  of  any  agreement,  the  amount  of  the 
salvage  or  assistance  shall  be  fixed  by  the  judge  in  money,  all  the 
circumstances  of  the  case  being  taken  into  reasonable  consideration. 

Art.  745.  The  amount  awarded  for  the  salvage  or  assistance  also 
includes  compensation  for  any  outlay  which  may  have  been  made  for 
the  purposes  of  the  salvage  or  assistance. 

It  does  not  include,  however,  the  costs  and  fees  of  the  legal  authori- 
ties, the  duties  and  charges  to  which  the  salved  articles  may  be  liable, 
or  the  expenses  of  storing,  preserving,  valuing,  and  disposing  of  the  same. 


7o2  MARITIME    LEGTSLATIOX. 

Art.  746.  The  following  circumstances  are  more  particularly  to  be 
taken  into  consideration  in  settling  the  amount  to  be  awarded  for 
salvage  or  assistance  :  — 

The  zeal  shown. 

The  time  expended. 

The  services  rendered. 

The  outlay  incurred. 

The  number  of  persons  who  assisted. 

The  danger  to  which  they  and  their  vessels  were  exposed,  as  also 

The  danger  which  threatened  the  salved  or  rescued  articles,  and 

The  value  of  the  same  remaining  after  deduction  of  the  expenses 
(Art.  745,  clause  2). 

Art.  747.  The  award  for  salvage  or  assistance  shall  not  be  fixed  at 
a  proportion  of  the  value  of  the  salved  or  rescued  articles,  unless  all 
parties  shall  mutually  agree  thereto. 

Art.  748.  The  amount  of  the  salvage  shall  not  exceed  one-third  of 
the  value  of  the  articles  salved  (Art.  746). 

Only  in  exceptional  cases  may  the  amount  be  increased  up  to  the 
lialf  of  the  value,  as  when  the  salvage  was  accompanied  with  unusual 
exertions  and  risks,  and  when  at  the  same  time  such  value  is  only 
small. 

Art.  749.  The  amount  awarded  for  assistance  shall  always  be  less 
than  the  amount  of  salvage  would  have  been  in  the  same  circumstances. 
In  settlement  of  the  amount  to  be  awarded  for  assistance,  the  value  of 
the  articles  rescued  is  only  of  secondary  importance. 

Art.  750.  When  several  persons  have  taken  part  in  the  salvage  or 
rendering  of  assistance,  the  amount  awarded  shall  be  divided  among 
them  in  proportion  to  the  services  that  each  may  have  rendered  either 
personally  or  with  his  property,  and  in  case  of  dispute,  according  to 
the  number  who  have  to  participate. 

All  those  who  devote  themselves  to  the  saving  of  human  life  in  a 
casualty  are  entitled  to  participate  equally. 

Art.  751.  When  a  ship  or  its  cargo  is  either  wholly  or  in  part  salved 
or  preserved  by  another  ship,  then  the  amount  awarded  for  salvage  or 
assistance  is  divided  between  the  owner,  the  master,  and  the  rest  of  the 
crew  of  the  other  ship,  unless  it  shall  have  been  otherwise  specially 
agreed  between  them,  in  such  proportion,  that  the  owner  shall  take 
one-half,  the  master  one-quarter,  and  the  rest  of  the  crew  the  other 
one-quarter.  Among  the  latter  the  amount  shall  be  divided  in  propor 
lion  to  the  pay  to  which  each  is  entitled,  or  to  which  each  would  be 
entitled  according  to  rank. 

Ar/.  75l'.    No  j)crson  has  iui\-  il;iiin  for  salvage  or  assistance  — 


APPENDIX.  753 

(1)  Who  has  forced  the  acceptance  of  his  services,  or  more  particu- 

hirly  has  gone  on  board  tlie  ship  without  permission  of  the 
master,  when  the  latter  was  present. 

(2)  Who  has  not  immediately  given  notice  to  the  mastex',  the  pro- 

prietor, or  the  proper  authority  respecting  such  salvage. 
Art.  753.  With  respect  to  the  expenses  for  salvage  and  assistance, 
which  shall  be  understood  to  include  the  amount  awarded  for  such 
salvage  and  assistance,  the  creditor  has  a  lien  on  the  salved  or  pre- 
served articles,  and  with  respect  to  the  salved  may  detain  them  until 
security  for  the  amount  has  been  given. 

In  enforcing  the  lien,  the  stipulations  of  the  second  and  third 
clauses  of  Art.  697  shall  be  applied. 

Art.  754.  The  master  may  not  deliver  the  goods,  either  wholly  or  in 
part,  until  the  creditor  has  been  paid  or  has  received  security,  other- 
wise he  makes  himself  personally  liable  to  the  creditor,  so  far  as  the 
latter's  claim  could  have  been  satisfied  out  of  the  delivered  goods  at 
the  time  of  their  delivery. 

If  the  master  has  acted  in  accordance  with  instructions  from  his 
owner,  then  tlie  directions  of  the  second  and  third  clauses  of  Art.  479 
come  into  operation. 

Art.  755.  Salvage  and  rendering  of  assistance  do  not  of  themselves 
impose  a  personal  responsibility  for  payment  of  salvage  and  assistance 
expenses. 

But  the  receiver  of  goods,  when  it  is  known  to  him  at  the  time  he 
received  them  that  the  same  were  liable  for  salvage  or  assistance  ex- 
penses, becomes  personally  liable  for  such  expenses,  so  far  as  they  could 
have  been  satisfied  out  of  the  goods  themselves,  had  they  not  been 
delivered. 

If  other  articles  have  been  salved  or  preserved  together  with  the 
goods  which  have  been  so  delivered,  then  the  personal  liability  of  the 
receiver  only  extends  to  the  amount  which  falls  upon  the  goods 
delivered,  when  the  expenses  are  divided  among  the  whole  of  the 
articles. 

Art.  756.  The  laws  of  the  respective  countries  retain  the  right  to 
amend  the  provisions  of  this  ninth  part. 

They  can  enact  that  other  than  legal  tribunals  shall,  with  the  re- 
servation of  an  appeal  to  law  (Art.  744),  be  called  upon  to  decide 
questions  as  to  liability  to  the  payment  of  salvage  or  assistance  claims, 
or  as  to  the  amounts  to  be  awarded  in  such  cases. 

The  regulations  of  the  different  countries  as  to  the  recapture  of  a 
ship  taken  by  the  enemy  do  not  come  under  the  provisions  of  this 
part. 

3c 


754  MARITIME   LEGISLATION. 

TENTH   PART. 

Concerning  the  Ship's  Creditors. 

Art.  757.  The  rights  of  a  ship's  creditor  are  acquired  by  virtue  of 
the  following  claims,  \-iz. — 

(1)  Expenses  of  a  compulsory  sale  of  the  vessel,  to  which  belong 

also  the  expenses  connected  with  the  distribution  of  the 
purchase-money,  the  cost  of  watching,  keeping,  and  main- 
taining the  vessel  and  its  appurtenances  from  the  application 
for  the  compulsory  sale  or  from  the  arrest  preceding  such  sale  ; 

(2)  Expenses,  not  included  in  No.  1,  of  watching  and  keeping  the 

vessel  and  its  appurtenances,  from  the  time  of  its  being 
brought  into  the  last  port,  in  case  it  has  been  sold  by  order 
of  a  court  of  law  ; 

(3)  All  official,  ship,  navigation,  and  port  duties,  more  particularly 

tonnage,  light,  quarantine,  and  port  dues  ; 

(4)  The  claims  of  the  crew  arising  out  of  contracts  respecting  their 

services  and  wages  ; 

(5)  Pilotage  monies,  and  expenses  for  salvage,  assistance,  redemp- 

tion, and  reclamation  ; 
(G)  The  contributions  of  the  vessel  to  General  Average  ; 

(7)  Claims  of  the  creditors,  to  wliom  the  vessel  has  been  bottomried, 

as  well  as  tlie  claims  arising  out  of  other  credit  transactions 
which  the  master  as  such  has  concluded  in  urgent  cases 
wliile  the  vessel  was  away  from  the  port  of  registry 
(Articles  497,  510),  even  if  he  is  part-owner  or  sole  owner 
of  the  vessel.  Claims  for  supplies  furnished  or  services 
rendered  enjoy  the  same  privilege  as  the  aforesaid  claims  on 
credit  transactions,  if  such  supplies  have  been  furnished  or 
services  rendered  in  cases  of  necessity,  while  the  vessel  was 
away  from  the  poii  of  registry,  and  for  the  preservation  of 
the  vessel  or  for  the  performance  of  the  voyage,  to  the  master 
as  such  and  not  on  his  personal  credit,  so  far  as  the  supplies 
furnished  or  services  rendered  were  required  to  make  good 
the  necessity ; 

(8)  Claims  for  non-delivery  of  or  damage  to  goods  forming  part  of 

cargo  and  to  baggage  coming  under  the  second  section  of 
Art.  674  ; 

(9)  Claims,  not  coming  under  one  of  the  above  heads,  arising  out 

of  law  transactions  whicJi  the  master  as  such  has  concluded 
by    virtue  of  liis   loijil iniate   authority  and    not  of  a  special 


APPENDIX.  7uo 

power  of  attorney  (Art.  4.52,  No.  1);  also  claim.s,  not  coming 
under  one  of  the  al)ove  lieacls,  arisinj^  out  of  non-fulfilment 
or  incomplete  oi-  inii)crfect  fulfilment  of  a  contract  made  l)y 
the  owner,  so  far  a.s  the  carrying  out  of  the  latter  Ijelonged 
to  tlie  duties  of  the  master  (Art.  452,  No.  2)  ; 
(10)  Claims  arising  out  of  tlie  fault  of  a  per.son  belonging  to  the 
crew  (Articles  451  and  4.52,  No.  3),  although  he  may  at 
the  same  time  be  part-owner  or  the  sole  owner  of  the  vessel, 

Ai't.  758.  Ship's  creditors  to  whom  the  vessel  has  not  already  been 
bottomried  have  a  legal  lien  upon  the  vessel  and  its  appurtenances. 

The  lien  may  be  enforced  against  third  parties  who  may  have 
possession  of  the  vessel. 

Art.  759.  The  legal  lien  of  each  of  tliese  ship's  creditors  extends  also 
to  the  gross  freight  of  that  voyage  out  of  which  his  claim  has  arisen. 

Art.  760.  As  a  voyage  within  the  meaning  of  this  part  shall  be 
considered  that  voyage  for  which  the  vessel  is  fitted  out  anew,  or  which 
is  commenced  either  in  consequence  of  a  new  contract  of  aflfreightment 
or  after  complete  discharge  of  the  cargo. 

Art.  761.  The  ship's  creditors  specified  in  Art.  757,  par.  4,  have,  in 
respect  of  their  claims  arising  out  of  a  later  voyage,  a  legal  lien  also 
upon  the  freight  of  former  voyages,  so  far  as  they  are  performed  under 
the  same  agreement  as  to  service  and  wages  (Articles  521,  536,  538,  554). 

Art.  762.  The  provisions  concerning  the  legal  lien  of  the  other 
ship's  creditors  apply  equally  to  the  lien  to  which  bottomry  creditors 
are  entitled  according  to  Art.  680. 

The  extent  of  the  lien  of  the  bottomry  creditor  is,  however,  deter- 
mined by  the  contents  of  the  bottomry  contract  (Art.  681), 

Art.  763.  The  lien  of  a  ship's  creditor  exists  in  like  manner  for 
principal,  interest,  bottomry  premium,  and  costs. 

Art.  764.  A  ship's  creditor  enforcing  his  lien  may  sue  the  ship- 
owner as  well  as  the  master,  the  latter  even  when  the  vessel  is  in  the 
port  of  registry  (Art.  495). 

A  judgment  given  against  the  master  is,  as  regards  the  lien,  valid 
against  the  shipowner. 

Art.  765.  The  rights  of  a  ship's  creditor  are  not  impaired  by  the 
fact  that  the  shipowner  became  personally  liable  for  the  claim,  eitlier 
at  the  time  of  its  origin  or  subsequently. 

This  provision  applies  more  particularly  to  the  claims  of  the  crew 
founded  upon  agreements  of  service  and  wages  (Art.  453). 

Art.  766.  When  the  vessel  belongs  to  a  joint-ownership  the  ship 
and  freight  are  liable  to  ship's  creditors  in  tlie  same  manner  as  if 
it  belonged  to  a  single  owner. 

a  c  J 


750  MARITIME    LEGISLATION. 

Art.  767.  The  lien  of  the  ship's  creditor  upon  the  vessel  becomes 
void — 

(1)  By  a  compulsory  sale  of  the  vessel  in  a  home  port.  The  purchase- 

money  takes  the  place  of  the  ship  as  regards  the  ships 
creditors. 
The  ship's  creditors  must  be  publicly  summoned  to  protect  their 
rights  ;  in  other  respects  the  provisions  regulating  the  pro- 
ceedings for  a  sale  are  reserved  to  the  laws  of  the  various 
countries  ; 

(2)  By  the  sale  of  the  vessel  effected  by  the  master  by  virtue  of  his 

legal  authority  in  a  case  of  urgent  necessity  (Art.  499)  ;  the 
purchase-money  takes  the  place  of  the  vessel  as  regards  the 
ship's  creditors  so  long  as  it  is  not  paid  by  the  purchaser  or 
is  still  in  the  hands  of  the  master. 

Art.  768.  It  is  reserved  to  the  laws  of  the  various  countries  to 
enact,  that  liens  shall  also  become  void  in  other  cases  of  sale  when  the 
ship's  creditors  have  without  effect  been  publicly  summoned  to  give 
notice  of  their  liens,  or  when  the  ship's  creditors  have  not  given  notice 
of  their  liens  to  the  competent  court  of  law  within  a  fixed  period  from  the 
time  of  the  vessel's  arrival  in  tlie  port  of  registry  or  another  home  port. 

Art.  769.  Art.  767  does  not  apply  when  only  one  or  more  shares 
are  sold,  but  not  the  whole  vessel. 

Art.  110.  With  respect  to  the  ship,  the  expenses  of  the  compulsory 
sale  (Art.  757,  No.  1)  and  the  outlay  for  watching  and  keeping  the 
vessel  from  the  time  of  its  arrival  in  the  last  port  (Art.  757,  No.  2) 
have  precedence  over  all  other  claims  of  ship's  creditors. 

The  expenses  of  the  compulsory  sale  have  precedence  over  the  costs  of 
watching  and  keeping  the  vessel  from  the  time  of  its  arrival  in  the  last 
port. 

Art.  11  \.  As  regards  other  claims,  those  relating  to  the  last  voyage  (Art. 
760),  in  which  are  included  tho^e  arising  after  the  termination  of  the  last 
voyage,  have  precedence  over  the  claims  connected  with  former  voyages. 

As  regards  claims  not  relating  to  the  last  voyage,  those  relating  to 
a  later  voyage  have  precedence  over  those  relating  to  a  former  one. 

As  regards  the  ship's  creditors  mentioned  in  Art.  757,  No.  4,  their 
claims  relating  to  a  former  voyage  have  the  same  precedence  as  those 
relating  to  a  later  voyage,  provided  the  different  voyages  are  performed 
under  the  same  contract  of  service  or  wages. 

When  tlie  Ijottomry  voyage  includes  several  voyages  in  the  sense  of 
Art.  760,  the  bottomry  creditor  shall  rank  after  those  ship's  creditors 
whose  claims  refer  to  the  voyages  commenced  after  the  termination  of 
the  first  of  such  voyages. 


APPENDIX.  707 

Art.  772.  Claims  relating  to  the  same  voyage,  as  also  tliose  which 
are  to  be  considered  as  relating  to  the  same  voyage  (Art.  771),  are  to 
be  paid  in  the  following  order,  viz. — 

(1)  All  official,  ship,  navigation  and  port  dues  (Art.  757,  par,  3). 

(2)  Claims  of  the  crew  arising  out  of  agreements  concerning  their 

services  and  wages  (Art.  757,  par.  4). 

(3)  Pilotage  monies  and  expenses  for  salvage,  assistance,  redemp- 

tion, and  reclamation  (Art,  757,  par.  5),  contributions  of 
the  vessel  to  General  Average  (Art.  757,  par.  6),  claims  arising 
out  of  bottomry  and  other  credit  transactions  entered  into 
by  the  master  in  cases  of  necessity,  as  well  as  such  claims 
as  are  to  be  ti'eated  on  the  same  footing  therewith  (Art.  757, 
par.  7). 

(4)  Claims  for  non-delivery  of  or  damage  to  goods  and   baggage 

(Art.  757,  par.  8). 

(5)  Claims  mentioned  in  Art.  757,  pars.  9  and  10. 

Art.  773.  Of  the  claims  referred  to  in  pars.  1,  2,  4,  and  5  of  Art, 
772,  those  comprised  under  one  and  the  same  head  shall  be  considered 
to  have  equal  rights. 

Of  those  claims,  however,  mentioned  in  par.  3  of  Art.  772,  a  more 
recent  claim  shall  have  precedence  over  one  of  an  earlier  date  ;  tliose 
arising  simultaneously  have  equal  rights. 

When  the  master  has  concluded  several  transactions  in  consequence 
of  the  same  case  of  necessity  (Art.  757,  par.  7),  the  claims  resulting 
therefrom  shall  be  considered  to  have  arisen  simultaneously. 

Claims  arising  out  of  credit  transactions,  more  particularly  out  of 
bottomry  contracts  entered  into  by  the  master  for  the  purpose  of 
paying  earlier  liabilities  under  the  third  head  of  Art.  772,  as  well  as 
claims  arising  out  of  contracts  concluded  by  him  in  order  to  extend  the 
term  of  payment  of,  to  acknowledge  or  to  renew  such  former  liabilities, 
shall  only  have  the  same  priority  as  the  earlier  claim,  although  the 
credit  transaction  or  contract  may  have  been  necessary  for  the  con- 
tinuation of  the  voyage. 

Art.  774.  The  ship's  creditors'  lien  upon  the  freight  (Art.  759)  is 
only  valid  so  long  as  the  freight  is  still  unpaid,  or  the  monies  paid  in 
satisfaction  of  the  freight  are  still  in  the  hands  of  the  master. 

To  such  lien  apply  likewise  the  provisions  of  the  foregoing  articles 
concerning  priority. 

Should  the  freight  have  been  transferred,  the  lien  of  the  ship's  cre- 
ditors may  be  enforced  likewise  against  the  transferee  so  long  as  the 
freight  is  still  unpaid  or  the  money  is  in  the  hands  of  the  master. 

For  so  much  of  the  freight  as  the  shipowner  has  received  he  is  per- 


758  MARITIME    LEGISLATION. 

sonally  liable  to  the  ship's  creditors  who  have  been  thereby  entirely  or 
partially  deprived  of  their  lien  ;  to  each  for  such  amount  as  he  would 
have  received  as  his  proportion  if  the  said  money  had  been  distributed 
according  to  the  legal  order  of  priority. 

The  same  personal  liability  attaches  to  the  shipowner,  with  respect 
to  o"oods  shipped  on  his  own  account,  to  the  extent  of  the  current  freight 
at  the  loading  port  at  the  time  of  shipment. 

Art.  775.  When  the  shipowner  uses  the  freight  to  satisfy  one  or 
more  creditors  having  any  lien  thereupon,  he  is  answerable  to  creditors 
who  would  have  had  a  prior  claim  only  so  far  as  it  is  proved  that  he 
has  knowingly  wronged  them. 

Art.  776.  In  so  far  as  the  shipowner  has  received  the  purchase-money 
in  the  cases  mentioned  in  the  first  or  second  heads  of  Art.  767  he  is 
personally  responsible  for  the  amounts  received  to  all  ship's  creditors, 
to  the  same  extent  as  he  is  to  the  creditors  of  a  voyage  in  case  of 
encashment  of  the  freight  (Articles  774,  775). 

Art.  777.  When  the  shipowner,  after  having  received  notice  of  the 
claim  of  a  ship's  creditor  for  which  his  liability  extends  only  to  the 
ship  and  freight,  sends  the  vessel  to  sea  on  a  new  voyage  (Art.  760), 
should  such  a  course  not  be  indispensable  in  the  interest  of  the  ship's 
creditor,  he  becomes  likewise  personally  responsible  for  the  claim  to 
the  extent  of  that  amount  which  the  creditor  would  have  realised  if 
the  value  of  the  vessel  at  the  commencement  of  the  voyage  had  been 
distributed  amongst  the  ship's  creditors  according  to  the  legal  order  of 
priority. 

Unless  proved  to  the  contrary,  it  shall  be  considered  that  the  creditor 
would  have  received  payment  in  full  by  such  disti'ibution. 

The  personal  liability  of  the  owner  arising  out  of  the  encashment  of 
freight  which  is  subject  to  the  lien  of  the  creditor  (Art.  774)  is  not 
afiected  by  this  Article. 

Art.  778.  In  cases  of  General  Average,  the  compensation  for  sacri- 
fice or  damage  takes,  as  against  the  ship's  creditor,  the  place  of  that 
which  the  compensation  is  to  make  good. 

The  same  rule  applies  to  the  indemnity  which,  in  case  of  loss  or 
damage  to  the  vessel  or  of  non-payment  of  freight  when  goods  have 
been  lost  or  damaged,  is  due  to  the  shipowner  by  the  party  who  has 
caused  the  damage  by  his  illegal  conduct. 

When  the  compensation  or  indemnity  has  been  received  by  the 
shipowner,  he  is  personally  responsible  to  the  ship's  creditors  to  the 
e.Ktent  of  the  amount  received  in  the  same  manner  as  to  the  creditoi'S 
of  a  voyage  in  case  of  encashment  of  the  freight  (Articles  774,  775). 

Art.  77'.).    In    cusf  of  any  coiupelition  botwwn  ship's  creditors   on- 


APPENDIX.  759 

forcing  their  lien  and  other  creditors  on  mortgage  or  otherwise,  prefer- 
ence is  due  to  the  ship's  creditor's. 

Art.  780.  The  provisions  of  Articles  767,  769,  concerning  the  ex- 
tinction of  any  liens  of  such  ship's  creditors,  apply  likewise  to  other 
liens  acquired  in  accordance  with  the  laws  of  the  various  counti'ics 
either  by  voluntary  declaration  or  legal  process  against  the  ship  or  a 
share  therein  and  enforceable  against  a  third  holder. 

The  provision  of  Art.  767,  No.  1,  applies  likewise  to  any  liens  to 
which  a  shai'e  of  the  vessel  is  subject  in  case  of  a  compulsory  sale  of 
such  share. 

In  other  respects  the  rights  of  the  mortgage  creditors  mentioned  in 
the  first  paragraph  are  not  subject  to  the  enactments  of  this  pai't,  but 
to  the  laws  of  the  various  countries. 

Art.  781.  Of  liens  upon  the  goods  for  freight,  bottomry  monies,  con- 
tributions to  General  Average,  claims  for  salvage  and  assistance 
(Articles  624,  626,  680,  727,  753),  the  lien  for  freight  ranks  after  all 
others  ;  amongst  these  claims  the  more  recent  have  priority  over  the 
earlier  claim,  those  of  simultaneous  origin  enjoy  equal  rights.  Claims 
originating  in  transactions  which  the  master  has  concluded  in  conse- 
quence of  the  same  case  of  necessity  are  considered  to  be  of  simultaneous 
origin. 

The  provisions  of  Art.  778  apply  in  the  cases  of  General  Average, 
and  of  loss  or  damage  by  illegal  conduct  ;  the  provisions  of  Art.  7G7, 
No.  2,  apply  in  the  case  of  a  sale  effected  by  the  master  for  the  purpose 
of  avoiding  or  lessening  a  loss  according  to  the  third  section  of  Art. 
504  ;  and  the  provisions  of  Art.  776  apply  when  the  party  for  whose 
account  the  sale  has  taken  place  receives  the  purchase-money. 


ELEVENTH   PART. 

C onceridny  Insurances  against  the  Dangers  of  Maritime  Navigation. 

First  Division. — General  Principles. 

Art.  782.  Every  interest  computable  in  money,  which  any  person  has 
at  stake  in  the  preservation  of  ship  or  cargo  from  the  dangers  of  mari- 
time navigation,  may  be  the  subject  of  marine  insurance. 

Art.  783.  The  following  more  particularly  may  be  insured  : — 
the  vessel  ; 
the  freight  ; 
the  passage-monies  ; 


7G0  MARITIME   LEGISLATION. 

the  cargo  ; 

the  bottomry  monies ; 
the  average  monies  ; 

other  claims  for  the  payment  of  which   vessel,  freight,  passage- 
monies,  or  cargo,  are  liable  ; 
the  benefit  expected  from  the  arrival  of  the  cargo  at  the  port  of 

destination  (imaginaiy  profits)  ; 
the  commission  to  be  earned  ; 
the  risk  taken  by  the  underwriter  (re-insurance). 
One  of  these  insurances  does  not  include  the  other. 
Art.  784.  Claims  of  the  master  and  the  crew  for  wages  are  not  in- 
surable. 

A7-t.  785.  The  party  insuring  may  either  insure  his  own  interest  (in- 
surance for  own  account)  or  the  interest  of  a  third  party  (insurance  for 
account  of  another,  as  agent),  and  in  the  latter  case  may  or  may  not 
giye  the  name  of  the  assured. 

The  contract  may  also  leave  it  undecided  whether  the  insurance  has 
been  effected  for  own  account  or  as  agent  (for  account  of  '  whom  it  may 
concern  ').  If  in  the  case  of  an  insurance  on  account  of  '  whom  it  may 
concern,'  it  should  turn  out  that  the  same  has  been  effected  on  account 
of  a  third  party,  the  provisions  concerning  insurance  as  agent  come 
into  application. 

The  insurance  is  considered  to  have  been  effected  for  the  account 
of  the  party  taking  the  insurance  when  it  does  not  appear  upon  the 
face  of  tlie  conti-act  that  it  has  been  effected  as  agent  or  for  account  of 
'  whom  it  may  concern.' 

Art.  786.  An  insurance  as  agent  is  only  binding  upon  the  under- 
writer when  either  tlie  party  taking  the  insurance  has  been  authorised 
by  the  assured  to  effect  it,  or  when  the  absence  of  such  authorisation 
has  been  notified  to  the  underwriter  by  the  party  taking  the  insurance 
at  the  time  of  completing  the  contract. 

When  this  notification  has  been  omitted,  the  want  of  authorisation 
cannot  be  made  good  by  the  subsequent  approval  of  the  insurance  by 
the  assured. 

When  the  notification  has  been  given,  the  validity  of  the  insurance 
as  against  the  underwriter  is  not  dependent  upon  the  subsequent 
approval  of  the  assured. 

The  underwriter  on  whom,  according  to  the  provisions  of  this 
article,  the  insurance  contract  is  not  binding,  is  entitled,  even  when  he 
proves  tlic  invalidity  of  the  contract,  to  the  full  premium. 

Art.  787.  When  the  insurance  has  been  efi'ected  by  an  empowered 
substitute,  hy  a    manager  without   authorisation,    or   by    some   other 


APPENDIX.  7C1 

representative  of  the  assured  in  the  name  of  the  latter,  such  represen- 
tative is  neither  an  insurer  witliin  the  meaning  of  this  act,  nor  is  the 
assurance  itself  an  insurance  done  by  an  agent. 

In  doubtful  cases  it  shall  be  considered,  that  even  when  an  insur- 
ance refers  to  the  interest  of  a  named  third  party  it  is  an  assurance 
done  as  agent. 

Art.  788.  The  underwriter  is  obliged  to  deliver  to  the  party  effecting 
the  insurance  at  his  request  a  written  document  (policy)  relating  to 
the  insurance  contract  and  bearing  his  signature. 

Art.  789.  The  validity  of  the  insurance  contract  is  not  affected  by 
the  question  whether  at  the  time  of  its  conclusion  there  is  no  longer 
any  possibility  of  a  claim  occurring  for  damage,  or  whether  a  claimable 
damage  has  already  occurred. 

The  contract  is,  however,  invalid  as  an  insurance  contract  if  both 
contracting  parties  were  aware  of  the  position  of  affairs. 

If  the  underwriter  alone  was  aware  that  the  possibility  of  a  claim- 
able damage  no  longer  existed,  or  if  the  insured  party  alone  was  aware 
that  a  claimable  damage  had  already  occurred,  the  contract  is  invalid 
as  regards  the  other  party  to  whom  the  position  of  affairs  was  unknown 
In  the  second  case  the  underwriter  is  entitled  to  the  full  premium, 
even  when  he  relies  upon  the  invalidity  of  the  contract. 

When  the  contract  has  been  concluded  for  the  party  taking  the 
insurance  by  a  representative,  the  stipulations  of  the  second  section  of 
Art.  810  apply  ;  in  case  of  an  insurance  as  agent,  the  provisions  of 
Art.  811  ;  and  in  case  of  an  insurance  of  several  objects  or  of  a  col- 
lection of  objects,  the  provisions  of  Art.  814. 

Art.  790.  The  full  value  of  the  insured  object  is  the  insurable  value. 
The  sum  insured  shall  not  exceed  the  insurable  value. 
The  insurance  has  no  legal  validity,  so  far  as  it  exceeds  the  insur- 
able value  (over-insurance). 

Art.  791.  When  in  the  case  of  a  simultaneous  conclusion  of  various 
insurance  contracts,  the  total  amount  of  the  sums  assured  exceeds  the 
insurable  value,  all  underwriters  together  are  only  answerable  to  the 
extent  of  the  insurable  value,  each  of  them  being  liable  for  such  a  per- 
centage of  the  insurable  value  as  the  sum  he  has  insured  represents  in 
proportion  to  the  total  of  the  amounts  insured.  When  doubts  arise  in  such 
cases  the  contracts  shall  be  considered  as  simultaneously  concluded. 

Insurance  contracts  for  which  a  common  policy  has  been  given,  as 
also  insurance  contracts  concluded  on  the  same  day,  are  considered  as 
simultaneously  concluded. 

Art.  792.  When  an  interest  which  has  already  been  insured  to  its 
full  value  is  again  insured,  the  latter  insurance  is  legally  invalid  so  far 


7G2  MARITIME   LEGISLATION. 

as  the  interest  has  ah-eady  been  insured  for  the  same  time  and  against 
the  same  danger  (double  insurance). 

If  the  full  value  is  not  covered  by  the  earlier  insurance,  the  later 
insurance  is  only  valid  for  that  part  of  the  value  not  previously  insured, 
so  far  as  the  insurance  has  been  taken  for  the  same  time  and  against 
the  same  danger. 

Art.  793.  The  later  insurance  is,  however,  legally  valid  notwith- 
standing the  previous  insui'ance— 

(1)  When  at  the  conclusion  of  the  later  insurance,  it  is  agreed  with 

the  underwriter  that  rights  arising  out  of  the  previous  in- 
surance shall  be  ceded  to  him. 

(2)  When  the  later  insurance  is  concluded  with  the  condition  that 

the  underwriter  shall  only  be  answerable  so  far  as  the 
assured  may  be  unable  to  enforce  payment  against  the 
former  underwriter  on  account  of  insolvency,  or  so  far  as 
the  former  insurance  may  be  legally  invalid. 

(3)  When  the  former  underwriter  is  by  formal  notice  released  from 

liability  so  far  as  is  necessary  to  avoid  a  double  insurance, 
the  later  underwriter  being  informed  thereof  at  the  conclu- 
sion of  the  later  insurance.  In  this  case  the  former  under- 
writer is  entitled  to  the  full  premium  although  he  is  freed 
from  his  obligation. 

Art.  794.  In  case  of  double  insurance  the  later  iiasurance,  not  the 
previous  one,  is  legally  valid,  when  the  previous  insurance  has  been 
taken  as  ayent  without  authorisation,  the  later  insurance  on  the  other 
hand  being  effected  by  the  assured  himself,  provided  the  assured  at 
the  time  of  effecting  the  later  insurance  was  not  informed  of  the 
previous  one,  or  gi\es  notice  to  the  underwriter  at  the  time  of  its 
conclusion  that  he  repudiates  the  pi'evious  insurance. 

The  provisions  of  Articles  900  and  901  apply  in  such  cases  as  far 
as  regards  the  rights  of  the  former  underwriter  to  the  premium. 

Art.  795.  When  several  insurances  have  been  made  simultaneously 
or  successively,  a  subsequent  renunciation  of  rights  attaching  against 
one  underwriter  cannot  influence  the  rights  and  obligations  of  the 
remaining  underwriters. 

Art.  796.  When  the  insured  sum  falls  short  of  the  insurable  value, 
the  underwriter  in  case  of  a  partial  damage  shall  make  good  the 
amount  of  such  damage  only  in  the  same  proportion  as  the  sum  insured 
bears  to  the  insurable  value. 

Art.  797.  When  by  arrangement  of  the  parties  the  insurable  value 
is  fixed  at  a  stated  sum  ('valuation,'  'valued  policy  '),  such  stated  sum 
is  binding'  upon  the  pai-lics  as  tlic  in.suiablc  value. 


APPENDIX.  763 

The  underwriter  is,  however,  entitled  to  demand  a  reduction  of  the 
valuation,  if  he  proves  it  to  be  considerably  overstated  ;  if  an  imaginary 
profit  has  been  insured  at  a  valuation,  lie  shall,  if  he  disputes  such 
estimate,  prove  that  it  exceeded  the  profit  which,  at  the  time  of  the 
conclusion  of  the  contract,  could,  according  to  connnercial  calculation, 
possibly  liave  been  expected. 

A  policy  containing  the  clause  '  provisionally  valued  '  shall,  so  long 
as  a  definite  "valuation  has  not  been  inserted,  be  considered  as  an 
unvalued  (open)  policy. 

When  freight  has  been  insured  the  valuation  shall  only  influence 
the  amount  claimable  against  the  underwriter  when  such  has  been 
expressly  stipulated. 

Art.  798.  When  several  objects,  or  a  collection  of  objects,  are  in- 
cluded in  a  policy  under  the  same  assured  sum,  and  for  some  of  them 
special  valuations  hav^e  been  agreed  to,  the  objects  specially  valued  are 
considered  as  separately  insured. 

Art.  799.  Unless  the  parties  have  agreed  upon  another  basis  of 
value,  the  insurable  value  of  ship  shall  be  considered  to  be  its  value  at 
the  time  when  the  underwritei-'s  risk  begins. 

This  rule  applies  even  when  an  estimate  of  the  insurable  value  of 
the  vessel  has  been  inserted. 

Art.  800.  The  cost  of  outfit,  the  wages,  and  the  cost  of  insurance 
may  be  insured  together  with  the  ship  or  separately,  so  far  as  they  may 
not  have  been  previously  covered  by  insurance  of  the  gross  freight. 
They  are  considered  to  be  insured  together  with  the  ship  only  when 
such  has  been  mutually  agreed  upon. 

Art.  801.  The  freight  may  be  insured  to  the  extent  of  its  gross 
amount  in  so  far  as  it  may  not  have  been  previously  covered  by  insur- 
ance of  the  cost  of  outfit,  of  wages,  and  cost  of  insurance. 

The  amount  of  freight  stipulated  by  the  contracts  of  afireightment 
shall  be  considered  as  the  insurable  value  of  the  freight,  and  when  a 
fixed  amount  of  freight  has  not  been  agreed  upon,  or  so  far  as  goods 
have  been  shipped  on  account  of  the  shipowner,  the  amount  of  the 
current  freight  (Art.  620). 

Art.  802.  When  an  insurance  upon  freight  does  not  mention 
whether  the  whole  or  only  a  part  thereof  is  insured,  the  whole  freight 
shall  be  considered  as  insured. 

W^hen  it  is  not  stated  whether  the  gross  or  net  fx-eight  is  insured, 
the  gross  freight  shall  be  considered  as  insured. 

When  the  freight  of  the  outward  voyage  and  the  freight  of  the 
homeward  voyage  have  been  covered  in  one  insurance,  and  it  has  not 
been   stated  what  proportion  of  the  insured   sum   shall  apply  to  the 


7(M  MARITIME   LEGISLATION. 

freight  of  the  outward  voyage  and  what  to  that  of  the  homeward 
vovao-e,  one  moiety  of  such  sum  shall  be  accounted  as  the  freight  of  the 
outward  voyage,  and  one  moiety  as  the  freight  of  the  homeward  voyage. 

Art.  803.  Unless  the  parties  have  agreed  upon  another  basis  of 
value,  the  value  which  the  goods  may  have  at  the  place  and  time  of 
shipment,  including  all  expenses  incurred  till  they  have  been  received 
on  board,  together  with  the  cost  of  insurance,  shall  be  considered  as 
the  insurable  value. 

The  freight  and  the  charges  during  the  voyage  and  at  the  place  of 
destination  are  only  included  when  a  special  agreement  has  been  made 
to  that  effect. 

The  provisions  of  this  Article  are  also  applicable  when  the  insurable 
value  of  the  goods  has  been  inserted. 

Art.  804.  When  the  cost  of  outfit  or  the  wages  are  insured,  whether 
separately  or  by  insurance  of  the  gross  freight,  or  when  in  the  case  of 
an  insurance  on  goods,  the  freight  or  the  charges  during  the  voyage 
and  at  the  place  of  destination  are  insured,  the  underwriter  is  not 
iable  to  pay  for  that  portion  of  the  same  which  in  consequence  of  a 
casualty  has  not  become  due. 

Art.  805.  In  the  case  of  an  insurance  upon  goods,  imaginary  profit 
or  commission  is  only  considered  as  included  in  the  assurance  if  such 
has  been  stipulated  by  the  contract,  even  though  the  insurable  value  of 
the  goods  may  have  been  declared. 

If  when  imaginary  profit  has  been  included  in  the  insurance  the 
insurable  value  has  been  declared,  but  without  stating  what  proportion 
of  the  said  value  relates  to  the  imaginary  profit,  it  shall  be  considered 
that  ten  per  cent,  of  the  said  value  is  intended  to  cover  the  imaginary 
profit.  If  when  imaginary  profit  has  been  included  in  the  assurance, 
the  insurable  value  has  not  been  declared,  then  ten  per  cent,  of  the 
insurable  value  of  the  goods  (Art.  803)  is  considered  to  have  been 
insured  as  imaginary  profit. 

The  provisions  of  the  second  paragraph  are  applicable  also  to  cases 
where  commission  has  been  included  in  the  insui-ance,  with  the  modifi- 
cation, however,  that  two  per  cent,  is  to  be  substituted  for  the  ten 
per  cent. 

Art.  806.  If  imaginary  profit  or  commission  has  been  separately 
insured,  but  the  insurable  value  not  declaimed,  it  shall  in  doubtful  cases 
be  considered  that  the  insured  sum  is  to  be  taken  also  as  the  insurable 
value. 

Art.  807.  Monies  advanced  upon  bottomry  may  be  insured  on 
account  of  the  bottomry  creditor  together  with  the  bottomry  premium. 

If  an  insurance  on  bottomry  monies  does  not  mention  what  inte- 


APPENDIX.  765 

rests  have  been  bottomried,  it  shall  be  considered  that  tlie  bottomry- 
advances  are  insured  upon  ship,  freight,  and  cargo.  If  the  whole  of 
these  interests  have  not  actually  been  bottomried,  the  underwriter 
alone  is  entitled  to  claim  the  benefit  of  the  foregoing  enactment. 

Art.  808.  When  the  underwriter  has  fulfilled  his  engagement,  he 
acquires,  so  far  as  he  has  paid  a  loss  which  the  assured  was  entitled  to 
claim  against  a  third  party,  the  rights  of  the  assured  against  such  third 
party,  without  prejudice,  however,  to  the  provisions  of  the  second  para- 
grapli  of  Art.  778,  and  the  second  paragraph  of  Art.  781. 

The  assured  shall,  at  the  request  and  at  the  expense  of  the  under- 
writer, provide  him  with  a  certified  document  acknowledging  his 
assumption  of  all  rights  against  the  third  party. 

The  assured  party  is  responsible  for  any  action  by  which  he  preju- 
dices those  rights. 

Ai't.  809.  In  case  of  the  insui'ance  of  a  claim  the  payment  of  which 
is  secured  upon  some  interest  exposed  to  the  perils  of  the  sea,  the 
assured  in  case  of  damage  shall  cede  to  the  underwriter,  when  the 
latter  has  fulfilled  his  engagement,  his  rights  against  the  debtor  to 
the  same  extent  to  which  the  underwriter  has  made  good  the  loss. 

The  insured  party  is  not  l)ound  to  enforce  his  rights  against  the 
debtor  before  claiming  against  the  underwriter. 


Second  Division. — Concerning  Statements  made  at  the  Time  of 
Conclusion  of  the  Contract. 

Art.  810.  The  party  taking  the  insurance,  whether  acting  on  his 
own  account  or  as  agent,  shall  inform  the  underwriter  at  the  time  of 
conclusion  of  the  contract  of  all  circumstances  within  his  knowledge, 
which,  as  being  of  importance  for  the  due  appreciation  of  the  risk 
which  the  underwriter  is  taking  upon  himself,  are  of  a  nature  to  in- 
fluence him  in  his  decision  either  to  enter  into  the  contract  at  all  or  on 
what  conditions. 

When  the  contract  is  concluded  by  a  representative  on  behalf  of  the 
party  taking  the  insurance,  the  circumstances  known  to  the  represen- 
tative must  also  be  stated. 

Art.  811.  In  the  case  of  an  insurance  as  agent,  the  underwriter  must 
at  the  conclusion  of  the  contract  be  likewise  informed  of  all  circum- 
stances known  to  the  assured  himself  or  to  any  intermediate  agent. 

This  does  not,  however,  apply  to  facts  within  the  knowledge  of  the 
assured  or  of  an  intermediate  agent  when  such  circumstance  has  come 
to  tlieir  knowledge  so  late  that,  without  resorting  to  extraordinaiy 


706  MARITIME   LEGISLATION. 

measures,  they  would  be  uiuable  to  notify  it  to  tlie  pnrty  taking  the 
insurance  before  the  conclusion  of  the  contract. 

Nor  does  it  apply  to  facts  within  the  knowledge  of  the  assured 
when  the  assurance  has  been  effected  without  his  authority  or  know- 
ledge. 

Art.  812,  When  the  obligation  mentioned  in  the  two  foregoing 
Articles  is  not  fullilled,  the  contract  is  not  binding  upon  the  under- 
writer. 

Tliis  rule,  however,  does  not  apply  when  tlie  fact  not  notified  was 
kno^vn  to  the  underwriter,  or  when  it  might  be  taken  for  granted  that 
it  was  known  to  him. 

Art.  813.  When  the  party  taking  the  insurance  as  at  the  time  of 
concluding  the  contract  made  an  incorrect  statement  concerning  an 
important  fact  (Art.  810),  the  contract  is  not  binding  upon  the  under- 
writer unless  the  incorrectness  of  the  statement  was  known  to  him. 

This  provision  applies  irrespective  of  the  question  whether  the  in- 
correctness of  the  statement  was  wilful  or  accidental,  and  whether  with 
or  without  fraudulent  intention. 

Art.  814.  In  the  case  of  insurance  of  several  objects  or  of  a  collec- 
tion of  objects,  if  the  provisions  of  Articles  810-813  have  been  infringed 
with  respect  to  a  circumstance  relating  only  to  a  portion  of  the  insured 
objects,  then  the  contract  continues  in  force  against  the  underwriter 
as  regards  the  remaining  portion.  The  contract  is,  however,  invalid 
against  the  underwriter  with  respect  to  this  portion  also,  if  it  is  clear 
that  he  would  not  have  insured  such  portion  alone  on  the  same  con- 
ditions. 

Art.  815.  The  underwriter  is  entitled  to  the  full  premium  in  cases 
contemj)lated  by  Articles  810-814,  even  when  he  relies  upon  the  total 
or  pai-tial  invalidity  of  the  contract. 

TriiHD  Division. — Obligations  of  the  Assured  arising  out  op 
THE  Contract  of  Insurance. 

Art.  81 G.  In  default  of  a  special  agreement  to  the  contrary,  the 
premium  is  payable  immediately  after  the  conclusion  of  the  contract, 
and,  when  a  policy  is  required,  against  delivery  of  such  policy. 

The  party  taking  the  insurance  is  liable  for  the  payment  of  the 
premium. 

In  case  of  an  insurance  effected  as  agent,  if  the  party  taking  the 
insurance  has  become  insolvent  and  has  not  received  the  premium  from 
tlie  assured,  the  undcrwritor  may  claim  payment  of  the  promium  like- 
wise from  the  assured. 


APPENDIX.  767 

Art.  817.  When  before  cominencement  of  the  underwriters  risk 
another  voyage  has  been  substituted  for  the  voyage  insured,  tlie  under- 
writer is  exonerated  from  all  liability  in  case  of  insurance  upon  ship 
and  freight ;  with  respect  to  other  insurances  the  risk  of  the  substituted 
voyage  only  attaches  to  tlie  underwriter  when  the  alteration  in  the 
voyage  has  neitlier  been  made  by  the  assured  nor  by  his  orders  nor  witli 
his  approval. 

When  the  insured  voyage  is  altered  subsequently  to  the  cornmence- 
ment  of  the  underwriter's  risk,  the  latter  is  not  answerable  for  accidents 
occurring  after  the  alteration  in  the  voyage.  He  is,  however,  answer- 
able for  such  accidents  when  the  alteration  has  been  made  neitlier  by  the 
insured  nor  by  his  orders  nor  with  his  approval  ;  or  when  the  alteration 
has  been  occasioned  by  a  casualty,  unless  such  casualty  results  from 
perils  which  are  not  at  tlie  risk  of  the  underwriter. 

The  voyage  is  altered  so  soon  as  the  determination  to  direct  it  to 
another  port  of  destination  has  been  carried  into  effect,  althougli  tlie 
routes  to  the  two  ports  of  destination  may  not  have  as  yet  diverged. 
This  rule  applies  as  well  to  cases  referred  to  in  the  first  as  to  those 
referred  to  in  the  second  paragraph  of  this  Article. 

Art,  818.  If  the  commencement  or  the  termination  of  the  voyage 
be  unduly  delayed  by  the  assured  or  by  his  orders  or  with  his  approval  ; 
or  if  the  ordinary  course  of  the  insured  voyage  be  deviated  from,  or  a 
port  be  entei'ed  the  putting  into  which  cannot  be  considered  to  be  in- 
cluded in  the  insured  voyage  ;  or  if  the  assured  otherwise  cause  an 
augmentation  of  or  alteration  in  the  risk,  more  especially  by  the  non- 
fulfilment  of  a  promise  expressly  made  in  this  respect ;  then  the  under- 
writer is  not  answerable  for  accidents  which  may  afterwards  occur. 

This  result,  however,  does  not  take  place — 

(1)  If  it  is  clear  that  the  augmentation  of  or  alteration  in  the  risk 

could  have  had  no  influence  upon  the  subsequent  casualty; 

(2)  If  the  augmentation  of  or  alteration  in  the  risk,  subsequently 

to  the  risk  attaching  upon  the  underwriter,  has  been  oc- 
casioned by  a  casualty,  provided  the  latter  does  not  result 
from  a  danger  for  which  the  underwriter  is  not  answerable  ; 

(3)  If  the  master  has  been  impelled  by  the  dictates  of  humanity  to 

deviate  from  the  course  of  the  voyage. 

Art.  819.  If  at  the  conclusion  of  the  contract  the  name  of  the 
master  has  been  given,  this  fact  alone  does  not  imply  a  promise  that 
such  master  shall  retain  the  command  of  the  vessel. 

Art.  820.  In  case  of  insurance  upon  goods  the  underwriter  is  not 
responsible  for  any  casualty,  if  and  so  far  as  such  goods  have  not  been 
forwarded    by    the    vessel    designated    for   their   conveyance.     He  is 


768  MARITIME    LEGISLATION. 

however,  responsible  to  the  extent  of  the  contract,  if,  subsequently  to 
the  commencement  of  his  risk,  without  orders  from  or  approval  of  the 
assured,  the  floods  are  forwarded  in  some  other  manner  than  by  the 
vessel  desif^nated  for  their  conveyance,  or  when  this  has  been  done  in 
consequence  of  a  casualty,  unless  such  casualty  results  from  a  risk  for 
which  the  underwriter  was  not  responsible. 

Art.  8"^1.  When  an  insurance  is  effected  on  goods  without  stating 
the  name  of  the  vessel  or  vessels  (insurances  on  'ship  or  ships'),  the 
assured,  immediately  he  has  received  intelligence  of  the  name  of  the 
vessel  on  board  of  which  the  insured  goods  have  been  shipped,  shall 
communicate  this  information  to  the  underwriter. 

In  case  of  non-fulfilment  of  this  obligation  the  underwriter  is  not 
responsible  for  any  casualty  happening  to  the  goods  so  shipped. 

Art.  822.  Every  casualty  must  be  notified  to  the  underwriter  so 
soon  as  the  party  efiecting  the  insurance  or  the  assured,  if  the  latter 
is  aware  of  the  insurance,  receives  information  thereof  ;  otherwise  the 
underwriter  is  entitled  to  deduct  from  the  claim  for  damage  such 
amount  as  might  have  been  saved  if  the  notification  had  been  made  in 
due  time. 

Art.  823.  When  a  casualty  happens  the  assured  is  bound  to  do  every- 
thing in  his  power  to  save  the  insui'ed  objects,  as  well  as  to  avoid  greater 
loss. 

lie  shall,  however,  if  possible,  previously  communicate  with  the 
underwriter  respecting  the  steps  to  be  taken. 

Fourth  Division. — Concerning  the  Extent  of  the  Risk. 

Art.  824.  The  underwriter  is  responsible  for  all  risks  to  which 
vessel  or  cargo  is  exposed  during  the  period  of  the  insurance,  so  far 
as  no  stipulation  to  the  contrary  is  contained  in  the  following  regula- 
tions or  in  the  special  agreement. 

He  shall  bear  more  particularly — 

(1)  Risk  arising  from  the  element  and  other  perils  of  the  sea,  even 

when  occasioned  by  the  default  of  a  third  party,  such  as  : 
penetration  by  the  sea-water,  stranding,  shipwreck,  sinking, 
fire,  explosion,  lightning,  earthquake,  damage  by  ice,  ttc; 

(2)  Risk  of  war  and  of  any  Government  dispositions  ; 

(3)  Risk  of  arrest  on  the  application    of  a   third  party,  and  not 

caused  by  the  default  of  the  assured  ; 

(4)  Risk  of  theft,  as  also  the  risk  of  piracy,  plunder,  and  other 

acts  of  violence  ; 

(5)  Risk  of  the  hypotliecation   of  tlio  insured  goods  for  the  prose- 


1 


APPENDIX.  709 

cution  of  the  voyage,  or  of  their  disposal,  sale,  or  conver- 
sion for  the  same  purpose  (Articles  507-510,  734-)  ; 

(<))  Risk  of  dishonesty  or  default  of  any  niemljer  of  the  crew,  so 
far  as  a  loss  may  therel>y  be  entailed  u})on  the  insured 
object  ; 

(7)  Risk  of  collision,  no  matter  whether  the  assured  sustains  loss 
from  the  collision  directly,  or  indirectly  by  being  required  to 
make  good  damage  inflicted  upon  a  third  party. 

Art.  825.  The  following  damages  are  not  at  the  charge  of  the  under- 
writer— 

(1)  In  the  case  of  an  insurance  on  ship  or  freight — 

Damage  occasioned  in  consequence  of  the  vessel  ha\ing  been 
sent  to  sea  in  an  unseaworthy  condition,  or  improperly 
fitted  out  or  manned,  or  without  the  necessary  papers  (Art. 
480); 

Damage  which,  except  in  the  case  of  collision,  arises  out  of 
the  liability  of  the  owner  to  make  good  damage  occasioned 
to  a  third  party  by  a  member  of  the  crew  (Articles  451 
and  452). 

(2)  In  the  case  of  an  insurance  upon  the  ship — 

Damage  to  the  vessel  and  her  inventory  resulting  only  from 
wear  and  tear  in  the  ordinary  employment  of  the  vessel ; 

Damage  to  the  vessel  and  her  inventory  arising  only  from 
old  age,  decay,  or  worm. 

(3)  In  the  case  of  an  insurance  upon  goods  or  freight — 

Damage   arising   from    the  natural  condition  of  the  goods, 
more   particularly  from   internal  corruption,  diminution, 
ordinary  leakage,  etc.,  or  from   defective  packing  of  the 
goods,  or  occasioned  thereto  by  rats  or  mice  ;  when,  how- 
ever,   the   voyage   has    been  unusually  protracted  by  an 
accident,    for   which   the   underwriter  is  responsible,  the 
latter  shall  make  good  the  damages  described  under  this 
head  to  the  same  extent  as  they  are  attributable  to  the 
delay  ; 
( 1)  Damage  arising  out  of  any  default  of  the  assured,  and  in  the 
case  of  insurance  of  goods  or  imaginary  profit  such  dama<fe 
also  as  may  have  been  occasioned  by  a  default  of  the  shipper 
consignee,  or  supercargo  in  their  respective  capacities. 
Art.  826.  The  liability  of  the  underwriter  to  make  good  a  dama<^e 
attaches  also  when  the  assured  has  a  claim  for  compensation  against  the 
master  or  some  other  person.     The  assured  may  in  the  first  instance 
require  payment  from  the   underwriter.     He  shall,  however,  o-ive  alL 

3  D 


770  MARITIME    LEGISLATION. 

necessary  assistance  to  tlie  underwriter  for  the  effectual  prosecution  of 
such  chiim,  and  shall  likewise,  at  the  underwriter's  expense,  exercise  all 
suitable  precaution  accordino;  to  the  circumstances  of  the  case  for 
sejurins  the  claim  by  withholding  the  freight,  by  causing  the  vessel  to 
be  arrested,  or  by  other  proper  means  (Art.  823). 

Art.  827.  When  a  vessel  is  insured  for  a  voyage  the  risk  of  the 
undei-writer  begins  from  the  time  when  the  taking  on  board  of  cargo 
or  ballast  commenced,  or,  if  neither  cargo  nor  ballast  is  to  be  taken  on 
board,  from  the  time  of  the  departure  of  the  vessel.  It  terminates  with 
the  completion  of  the  discharge  of  the  cargo  or  ballast  at  the  port  of 
destination. 

AV^lien  the  discharge  is  unduly  delayed  by  the  assured,  the  risk 
terminates  at  the  time  when  the  discharge  would  have  been  completed 
if  such  delay  had  not  taken  place. 

When,  before  completion  of  the  discharge,  cargo  or  ballast  has  been 
taken  in  for  another  voyage,  the  risk  terminates  at  the  time  when  such 
shipment  of  cargo  or  ballast  has  been  commenced. 

Art.  828.  When  the  insurance  is  effected  upon  goods,  imaginary 
pro  tit,  or  the  commission  to  be  earned  on  account  of  goods  shipped,  the 
risk  commences  at  the  time  when  the  goods  leave  the  shore  for  the 
})urpose  of  being  loaded  in  the  vessel  or  the  lighters  ;  it  terminates  at 
the  time  when  the  goods  again  reach  the  shore  at  the  port  of  desti- 
nation. 

When  the  discharge  is  unduly  delayed  by  the  assured,  or,  in  the 
ca.se  of  an  insurance  on  goods  or  imaginary  profit,  by  the  assured  or  by 
one  of  tlie  persons  mentioned  in  Art.  825,  No.  4,  the  risk  terminates 
at  the  time  when  the  discharge  would  have  been  completed  if  such  delay 
liad  not  taken  j)lace. 

The  underwriter  takes  the  risk  of  such  use  of  lighters  in  connection 
with  the  sliipment  or  discharge  as  may  be  in  accordance  with  the  custom 
of  the  port. 

Art.  829.  In  the  case  of  insurance  upon  freight,  the  risk  arising 
out  of  accidents  to  which  the  ship  and  through  it  the  freight  are 
exposed  commences  and  terminates  at  the  same  moment  at  which  the 
risk  would  commence  and  terminate  in  the  case  of  an  insurance  upon 
sliip  for  the  same  voyage  ;  the  risk  arising  out  of  accidents  to  which 
the  goods  and  tlirough  them  the  freiglit  are  exposed  commences  and 
terminates  at  the  same  inomeut  at  which  the  risk  would  commence  and 
terminate  in  case  of  an  insurance  upon  goods  for  the  same  voyage. 

With  r('K])f!ct  to  insurance  upon  passagcvmonies,  the  risk  connnences 
and  tiriiiiii.itcs  at  the;  same  moment  as  it  would  commence  or  terminate 
witli  ;ui  insui'aiK-c  ii|i(>ii  tlic  sliip. 


APPENDIX.  771 

Tlie  underwriter  on  freiglit  and  passage-monies  i.s  only  responsible 
for  a  casualty  happening  to  the  vessel  so  far  as  contracts  of  affVeight- 
nient  or  for  the  conveyance  of  passengers  have  already  been  entered 
into  ;  and,  when  the  owner  ships  goods  on  his  own  account,  only  so  far 
as  such  goods  have  already  left  the  shore  for  the  purpose  of  being 
loaded  in  the  vessel  or  in  lighters. 

Art.  830.  In  the  case  of  insurance  upon  bottomry  and  average- 
monies  the  risk  commences  at  the  time  the  advances  are  made,  or, 
when  the  assured  has  himself  provided  the  average-monies,  at  the 
moment  of  their  being  expended  ;  it  terminates  at  the  moment  at 
wliich  it  would  terminate  if  the  insurance  were  taken  upon  the  objects 
which  have  been  hypothecated,  or  for  which  tlic  avei-age  monies  have 
been  expended. 

Art.  831.  The  underwi-iter's  risk  when  commenced  continues 
thi-uughout  the  stipulated  period  or  the  insured  voyage  without  inter- 
ruption. The  underwriter  more  particularly  takes  also  the  risk  of 
casualty  during  the  stay  in  a  port  of  distress  or  an  intermediate  port, 
and,  in  the  case  of  an  insurance  upon  an  out-and-home  voyage,  during 
the  stay  of  the  vessel  in  the  port  of  destination  of  the  outward 
voyage. 

When  the  goods  must  be  temporarily  discharged  or  when  the  vessel 
must  be  taken  ashore  for  repairs,  the  underwriter  is  liable  also  for  the 
risk  during  the  time  that  the  goods  or  the  vessel  are  ashore. 

Art.  832.  If,  after  inception  of  the  risk,  the  insured  voyage  is 
voluntarily  or  by  compulsion  abandoned,  the  port  in  which  the  voyage 
terminates  takes  the  place  of  the  port  of  destination  with  respect  to 
the  termination  of  the  risk. 

When,  after  abandonment  of  the  voyage,  the  goods  are  forwarded 
to  the  port  of  destination  otherwise  than  by  the  vessel  named  for  their 
conveyance,  the  risk  continues  to  attach  with  respect  to  such  goods 
even  if  they  are  forwarded  wholly  or  in  part  by  land.  The  underwriter 
in  such  cases  bears  also  the  expense  of  the  previous  discharge,  the 
expense  of  the  temporary  warehousing,  and  the  excess  of  expense 
incurred  in  forwarding  the  goods  even  if  they  have  been  forwarded  by 
land. 

Art.  833.  Articles  831  and  832  apply  only  when  not  in  contradic- 
tion to  the  stipulations  of  Articles  818  and  820. 

Ai^t.  834.  When  the  period  of  insurance  is  stipulated  in  days, 
weeks,  months,  or  years,  the  time  shall  be  computed  according  to  the 
calendar,  and  the  day  from  midnight  to  midnight.  The  underwriter 
beai"s  the  risk  during  the  day  of  its  commencing  as  well  as  of  its  ter- 
minating. 

3  d2 


772  MARITIME   LEGISLATION. 

"With  respect  to  computation  of  time,  the  reckoning  at  the  place 
where  the  sliip  happens  to  be  is  decisive. 

Art.  835.  Should  tlie  vessel  be  insured  upon  a  time-policy,  and  at 
tlie  expiration  of  the  period  agreed  therein  be  in  course  of  a  voyage, 
the  insurance  shall  be  considered,  in  default  of  an  agreement  to  the 
contrarv,  to  be  prolonged  until  the  arrival  of  the  vessel  in  the  next 
port  of  destination,  and,  if  the  discharge  takes  place  in  such  port,  until 
the  termination  of  the  discharge  (Art.  827).  The  assured  is,  however, 
at  liberty  to  waive  such  prolongation  by  notice  to  the  underwriter 
before  the  sailing  of  the  vessel. 

In  case  of  prolongation  the  assured  shall  continue  to  pay  the 
agreed  time-premium  for  the  period  of  such  prolongation,  and,  if  the 
vessel  should  be  missing,  then  until  the  expiration  of  the  time  when 
the  assured  becomes  entitled  to  claim  payment  upon  her  as  a  total  loss 
for  want  of  news. 

In  case  of  waiver  of  the  prolongation  no  claim  can  be  made  upon 
the  underwriter  on  the  ground  of  the  ship  being  missing,  if  the  period 
allowed  for  receipt  of  new^s  does  not  terminate  until  after  the  expiration 
of  the  period  of  insurance. 

Art.  836.  In  the  case  of  an  insurance  effected  for  one  or  other  of 
several  ports,  the  assured  may  select  one  from  amongst  these  ports  ; 
in  the  case  of  an  insurance  for  two  or  more  ports,  the  assured  is  entitled 
to  visit  every  one  of  the  ports  mentioned. 

Art.  837.  When  the  insurance  has  been  effected  for  several  ports  or 
when  the  assured  has  reserved  the  right  to  call  at  several  ports,  the 
assured  is  permitted  to  visit  such  ports  only  in  the  stipulated  order, 
or  in  default  of  any  agreement  then  in  the  order  which  the  ordinary 
course  of  the  voyage  would  demand  ;  he  is,  however,  not  obliged 
to  visit  all  the  various  ports  named. 

So  far  as  the  contrary  does  not  appear  upon  the  face  of  the  policy, 
the  order  in  which  the  ports  are  named  therein  is  considered  to  be  the 
order  stipulated. 

Art.  838.  The  underwriter  is  responsible  for — 

(1)  Contributions  to  General  Average,  including  such  as  the  assured 

has  himself  to  bear  on  account  of  damage  sustained  by  him  ; 
contributions  to  which,  in  conformity  with  Articles  637  and 
724,  the  principles  of  General  Average  apply,  being  placed  on 
the  same  footing  as  contributions  to  General  Average  ; 

(2)  Sacrifices  which  would  belong  to  General  Average  if  the  vessel  had 

had  goods  on  board  other  than  such  as  belonged  to  the  owner ; 

(3)  Other  outlay  necessarily  or  judiciously  incurred  witli  the  view 

of    saving  Hie    ])rop('rty,   as  also    of    avoiding    heavier    loss 


APPENDIX.  IT?, 

(Art.  823),  even  if  the  measures  resorted  to  have  proved 
unsuccessful  ; 

(4)  Expenses  rendered  necessary  for  the  investigation  and  deter- 
niination  of  tlie  loss  falling  upon  the  underwriter,  more 
especially  expenses  of  survey,  valuation,  sale,  and  of  making 
up  the  average  statement. 

Art.  839.  The  liability  of  the  underwriter  to  make  good  contribu- 
tions to  General  Average  and  such  other  contributions  as  are  placed  on 
the  same  footing  as  General  Average  is  regulated  )jy  the  average  state- 
ment made  up  at  tlie  proper  place,  whether  at  home  or  aljroad,  in  con- 
formity witli  the  laws  in  force  at  the  place  where  it  is  made  up.  More 
especially,  the  assured  who  has  sustained  a  General  Average  loss  shall 
not  demand  from  the  underwriter  more  than  the  amount  of  tlie  loss  as 
shown  by  the  average  statement  ;  but  tlie  underwriter  on  the  othej- 
hand  is  liable  for  the  whole  of  such  amount,  the  insurance  value  more 
particularly  not  being  taken  into  consideration. 

Neither  is  the  assured  entitled  to  claim  again.st  the  underwriter 
payment  of  damages  which  according  to  the  law  of  the  place  where 
the  average  statement  has  been  prepared  do  not  belong  to  General 
Average,  on  the  plea  that  such  damages  would  be  General  Average, 
according  to  other  law,  more  particularly  according  to  the  law  in  foi'ce 
at  the  place  where  the  insurance  has  been  effected. 

Art.  840.  The  underwriter,  however,  is  not  responsible  for  contribu- 
tions referred  to  in  the  foregoing  Article  so  far  as  they  result  from  an 
accident  for  which  the  underwriter  is  not  responsible  according  to  the 
contract  of  insurance. 

Art.  841.  When  the  average  statement  has  been  made  up  by  a 
person  authorised  thereto  either  by  law  or  custom,  the  underwriter 
may  not  contest  its  correctness  because  the  laws  of  the  place  where  it 
has  been  made  up  have  not  been  adhered  to  and  the  assux-ed  has 
suffered  loss  thereby,  unless  the  latter  has  been  himself  the  cause  of 
such  additional  loss  by  insufficient  attention  to  his  rights. 

The  assured  shall,  however,  cede  to  the  underwriter  his  claims 
against  parties  unduly  benefited  at  his  expense. 

On  the  other  hand,  the  underwriter  is  at  liberty  in  all  cases  to  dispute 
the  correctness  of  the  average  statement  as  against  the  assured,  in  so 
far  as  a  loss  sustained  by  the  assured  himself  for  which  he  would  not 
have  been  entitled  to  indemnification  according  to  the  law  of  the  place 
where  the  average  statement  was  made  up,  shall  nevertheless  have  been 
treated  as  General  Average. 

Art.  842.  With  respect  to  a  loss  suffered  ]:)y  the  assured,  and  either 
belonging  to  General  Average   or   claimable  on  the   same   footing  as 


774  MAKiriME    LEGISLATION. 

General  Average,  the  underwriter,  if  tlie  regular  course  of  procedure 
necessary  to  ascertain  and  apportion  the  damage  has  been  commenced, 
is  liable  to  make  good  amounts  payable  to  tlie  assured  only  so  far  as 
the  assured  has  not  been  able  to  recover  even  by  an  action  at  law  the 
compensation  due  to   him,  if  such   a  course   were    properly   open   to 

him. 

Art.  843.  If,  without  the  fault  of  the  assured,  the  regular  course 
of  procedure  has  been  neglected,  he  may  claim  against  the  underwriter 
direct,  subject  to  the  stipulations  of  the  contract  of  insurance,  the 
Avhole  amount  of  his  loss. 

Art.  844.  The  underwriter  is  liable  for  the  damage  only  to  the 
extent  of  the  amount  insured. 

He  shall,  however,  make  good  in  full  the  expenses  mentioned  in 
Art.  838,  heads  3  and  4,  even  if  the  total  claim  so  arising  should  exceed 
the  sum  insured. 

If  in  consequence  of  a  casualty  such  expenses  have  already  been 
occasioned — for  example,  if  an  outlay  has  been  incurred  for  redemption 
or  reclamation,  or  if  liabilities  have  already  been  incurred  for  the  pvxr- 
pose  of  replacing  or  repairing  any  objects  damaged  by  such  casualty, 
for  instance,  if  average-monies  have  for  such  purpose  been  expended, 
or  if  the  assured  ha\e  already  paid  contributions  to  the  General  Average 
or  if  the  assured  have  already  become  personally  liable  to  pay  such 
contributions,  and  should,  at  a  subsequent  period,  a  new  accident 
happen,  the  underwriter  is  liable  to  make  good  claims  arising  out  of 
the  later  accident  to  the  extent  of  the  whole  sum  insured,  irrespective 
of  tlie  former  outlays  and  contriljutions  for  which  lie  is  responsible. 

Art.  845.  After  the  occurrence  of  a  casualty,  the  underwriter  is 
entitled,  by  jiayment  of  tlie  full  amount  insured,  to  exonerate  himself 
from  all  furtlier  liability  arising  out  of  the  contract  of  insurance,  more 
particularly  fi-om  the  obligation  to  reimburse  expenses  rendered  neces- 
.sary  for  the  salving,  preservation,  and  rehabilitation  of  the  interest 
insured. 

Wlieii  at  tlic  time  of  the  occurrence  of  the  casualty  a  portion  of 
tlic  insuied  objects  had  already  ceased  to  be  exposed  to  the  risk  which 
the  undei-writer  has  taken  upon  liimself,  the  latter,  if  he  avail  himself 
of  liis  i-iglits  under  this  section,  sliall  not  be  recjuired  to  make  good  that 
proportion  of  the  assured  sum  which  would  have  been  due  from  such 
poition. 

The  underwriter  Ijy  payment  of  tlie  insured  sum  acquires  no  riglit 
to  the  objects  assured. 

Notwithstanding  tlio  payment  of  the  insured  sum  tlie  underwriter 
is  li;ible  to  make  good  such  expenses  ;is  niav  h;i\c  Ix'en  incurred  tor  the 


Al'PKXDlX.  7", 

SJilviiig,  preservation,  or  rclialjilitatioii  of  tlio  ol)ject.s  insured,  before  tlic 
assured  had  received  notice  of  his  intention  to  avail  himself  of  this  right. 

Art.  846.  The  underwriter,  under  peiialty  of  forfeiture  of  the  right 
granted  to  liim  by  Art.-  845,  shall  make  known  to  the  assured  his 
intention  to  avail  himself  of  such  right  at  latest  on  the  third  day  from 
the  expiration  of  that  day  on  which  the  assui-ed  has  informed  him,  not 
only  of  the  casualty,  its  nature  and  immediate  consequences,  but  also, 
.so  far  as  they  are  known  to  the  assured,  of  all  other  circumstances 
connected  therewith. 

Art.  847.  When  the  insurance  has  not  been  effected  upon  the  full 
value,  the  underwriter  is  only  responsible  for  the  contributions,  sacri- 
lices,  and  expenses  mentioned  in  Art.  838  under  heads  1  to  4,  in  the 
same  proportion  that  the  sum  insured  bears  to  the  insurable  \alue. 

Art.  848.  The  obligation  of  tlie  underwriter  to  make  good  a  loss  is 
neither  cancelled  nor  diminished  by  the  occurrence  of  a  fresh  casualty 
oi"  even  of  a  total  loss  arising  out  of  a  danger  which  is  not  at  the  risk 
of  the  underw liter. 

Art.  849.  The  underwriter  is  not  liable  to  make  good  particular 
averages  when,  irrespective  of  the  expenses  necessary  to  investigate 
and  ascertain  the  amount  of  the  damage  (Art.  838,  No.  4),  they  do  not 
exceed  three  per  cent,  of  the  insurable  value  ;  when,  however,  they 
amount  to  more  than  three  per  cent.,  the  underwriter  shall  make  good 
such  losses  without  deduction  of  the  three  per  cent. 

When  the  vessel  has  been  insured  for  time  or  for  several  voyages, 
the  tliree  per  cent,  shall  be  calculated  for  each  single  voyage.  Tlio 
meaning  of  the  term  '  voyage  '  is  defined  by  the  provisions  of  Art. 
760. 

A7-t.  850.  The  underwriter  shall  make  good  the  contributions, 
sacrifices,  and  expen.ses  defined  under  Art.  838,  heads  1-3,  even  wlien 
they  do  not  amount  to  three  per  cent,  of  the  insurable  value.  The 
same,  however,  are  not  to  be  taken  into  consideration  in  computing  tl:e 
three  per  cent,  mentioned  in  Art.  849. 

Art.  851.  Should  it  have  been  agreed  tliat  the  underwriter  shall  1  e 
exempted  from  a  certain  percentage,  the  provisions  contained  in  Articles 
849  and  850  are  to  be  applied,  with  this  modification,  that  the  amount 
of  percentage  mentioned  in  the  contract  is  substituted  for  the  three 
per  cent,  therein  enacted. 

Art.  852.  Should  it  have  been  agreed  that  the  underwriter  shall 
not  be  answerable  for  the  risk  of  war,  and  that  the  insurance  against 
other  risks  shall  only  run  until  a  molestation  of  war  occurs,  which 
agreement  is  more  particularly  presumed  to  have  been  made  when  the 
contract  has  been  concluded  with  the  clause,  '  free  from  molestation  of 


776  MARITIME    LEGISLATIOX.      , 

war  '  tlie  underwriter's  risk  terminates  at  tlie  moment  when  tlic  danger 
of  war  begins  to  exercise  an  influence  upon  the  voyage,  more  particu- 
larly therefore  when  the  commencement  or  continuation  of  the  voyage 
is  prevented  by  men-of-war,  privateers,  or  by  blockade,  or  delayed  for 
the  purpose  of  avoiding  the  dangers  of  war  ;  or  when  the  vessel  from 
such  a  cause  deviates  from  its  course,  or  when  the  master  loses  the  free 
control  over  the  vessel  through  molestation  of  war. 

Art.  853.  Should  it  have  been  stipulated  that  the  underwriter  shall 
be  exempt  from  the  risk  of  war,  but  be  liable  for  all  other  risks  even 
after  a  molestation  of  war  has  commenced,  which  stipulation  is  more 
particularly  presumed  to  have  been  made  when  the  contract  has  been 
concluded  with  the  clause  '  only  against  dangers  of  the  sea,'  the  under- 
writer's risk  terminates  only  with  the  condemnation  of  the  insured 
object,  or  so  soon  as  it  would  have  terminated  if  the  risk  of  war  had 
not  been  excepted  ;  the  underwriter  is,  however,  not  responsible  for 
the  damages  caused  immediately  by  danger  of  war  ;  he  is  therefore  not 
answerable  more  particularly  — 

For  confiscation  by  any  Powers  engaged  in  war  ; 

For  seizure,  damage,  destruction,  and  plunder  by  men-of-war  or 
privateers  ; 

For  expenses  arising  out  of  arrest  and  reclamation,  out  of  blockade 
of  the  port  where  the  vessel  is  lying,  or  warning  away  from  a 
port  under  blockade,  or  out  of  voluntary  delay  on  account  of  risk 
of  war  ; 

For  the  following  consequences  of  such  a  delay  :  deterioration  and 
diminution  of  the  goods,  expense  and  risk  of  their  discharge  and 
warehousing,  expense  of  their  forwarding. 

In  doubtful  cases  it  is  presumed  that  a  damage  has  not  been  occa- 
sioned by  risk  of  war. 

Art.  854.  If  the  contract  has  been  concluded  with  the  clause  '  for 
safe  arrival,'  the  underwriter's  risk  terminates  at  the  moment  when  the 
vessel  has  anchored,  or  been  moored  in  the  port  of  destination  at  the 
customary  or  proper  place. 

The  underwriter  is  further  only  responsible — 

(1)  In  case  of  insurance  on  the  ship,  when  either  a  total  loss  occurs, 

or  when  the  vessel  is  abandoned  (Art.  805)  or  sold  as  in- 
capable or  unworthy  of  repair  in  consecjuonce  of  a  casualty 
happening  previous  to  its  arrival  at  the  port  of  destination 
(Art.  877). 

(2)  In  case  of  insurance  on  goods,  when  the  goods,  or  a  portion  of 

(liciii,  in  conscciucnce  of  a  casualty  do  not  reach  the  port  of 
dcsf  iii;it  ion,    wn^Vi'    ]i;iil  icnlai-ly    w  licii    l)cfoi'e    roacliiiig    such 


APPENDIX.  777 

port  they  ;ire  sold  in  consoquonce   of  ;xn  accident.      If  tlie 

goods    reucli    the    port    of    destination    tlie    underwriter    is 

neitlier  answerable  for  an    injury  nor    for  a  loss  resulting 

from  an  injury. 

The  underwriter  shall,  moreover,  under  no  circumstances  be  liable 

for  the  contributions,  sacrifices,  and  expenses  coming  under  Art.  838, 

heads  1-4. 

Art.  855.  If  the  contract  has  been  concluded  with  the  clause  '  free 
of  damage  except  in  ca.se  of  stranding,'  the  underwriter  is  not  liable  to 
make  good  a  loss  arising  out  of  a  damage,  no  matter  whether  such  loss 
consists  in  a  diminution  of  value,  or  in  a  total  or  partial  loss,  and  more 
particularly  in  the  arrival  of  the  goods  at  the  port  of  destination  in  an 
utterly  spoiled  and  altered  state,  or  from  their  having  been  sold  during 
the  voyage  on  account  of  damage  and  innnediate  deterioration,  unless 
the  vessel  or  the  lighter  in  which  the  insured  goods  are  laden  has  been 
stranded.  The  following  perils  of  the  sea  are  considered  equivalent  to 
a  stranding,  viz.  :  capsizing,  sinking,  breaking  up  of  the  hull,  shipwreck, 
and  every  other  casualty  of  the  sea  by  which  the  vessel  or  lighter  has 
become  incapable  of  repair. 

If  a  stranding  or  some  other  casualty  of  the  sea  considered  as 
equivalent  thereto  has  occurred,  the  underwriter  is  liable  for  every  loss 
exceeding  three  per  cent.  (Art.  849)  arising  out  of  such  casualty,  but  not 
for  any  other  injury.  Until  the  contrary  be  proved,  any  injury  wdiich 
might  possibly  have  been  caused  by  the  accident  which  has  befallen 
the  vessel  shall  be  considered  to  have  been  actually  caused  thereby. 

Tor  every  loss  not  arising  out  of  a  damage  the  underwriter  is  liable, 
no  matter  whether  a  stranding  or  another  of  the  above-mentioned 
accidents  has  happened  or  not,  in  the  same  manner  as  if  the  contract 
had  been  concluded  without  the  clause.  Under  all  circumstances  he  is 
liable  for  contributions,  sacrifices,  and  expenses  mentioned  in  Art.  8.38, 
heads  1,  2,  and  4  ;  for  those  expenses,  however,  mentioned  under  head  .3 
of  the  same  Article  only  when  they  have  been  expended  in  order  to 
avoid  a  loss  which  would  have  fallen  upon  him. 

A  damage  proved  to  have  been  caused  by  fire  without  spontaneous 
combustion  or  by  extinction  of  such  fire,  or  by  bombai-dment,  is  not 
considered  as  an  injury  from  which  the  underwriter  is  exonerated  by 
the  above  clause. 

Art.  856.  If  the  contract  has  been  concluded  with  the  clause  '  free 
of  breakage  except  in  case  of  stranding,' the  enactments  of  the  pre^•ious 
Article  are  applicable  with  the  modification  that  the  underwriter  is 
liable  for  breakage  to  the  same  extent  as  according  to  the  previous 
Article  he  is  liable  for  damage. 


778  MARITIME    LEGISLATION. 

Art.  857.  A  stranding  in  the  sense  of  Articles  855  and  85G  takes 
place  when  the  vessel  under  circumstances  not  incidental  to  the  ordi- 
nary na\'igation  takes  the  ground,  and  either — 

is  not  got  off ;  or, 

is  got  off,  but  either  — 

(1)  Only    by   resorting    to    extraordinary  measures,    such    as  : 

cutting  away  masts,  jettison  or  discharge  of  a  portion  of 
the  cargo,  itc,  or  by  the  occurrence  of  a  tide  unusually 
high,  not,  however,  solely  by  the  application  of  ordinary 
measures,  such  as  heaving  on  the  anclior,  backing  the 
sails  and  the  like  ;  or, 

(2)  Only  after  the  vessel  has  sustained  material  damage  to  tlie 

hull  from  having  taken  the  ground. 

Fifth  Division. — Extent  of  the  Damage. 

Art.  858.  A  total  loss  of  the  vessel  or  the  goods  occurs  when  the 
vessel  or  the  goods  have  been  destroyed,  or  when  they  have  been  with- 
drawn from  the  assured  without  hope  of  their  recovery,  particularly 
when  they  have  been  irrecoverably  sunk  or  have  been  so  damaged  as 
to  lose  their  original  properties  or  have  been  declared  good  prize.  A 
total  loss  of  the  vessel  is  not  nullified  by  separate  portions  of  the 
wreck  or  of  the  inventory  being  saved. 

Art.  859.  A  total  loss  of  the  freight  occurs  when  the  whole  freight 
has  been  lost. 

Art.  860.  A  total  loss,  with  i-egard  to  imaginaiy  profit  or  to  com- 
mission expected  on  arrival  of  the  goods  at  tlu;  place  of  destination, 
occurs  when  the  goods  have  not  reached  their  place  of  destination. 

Art.  861.  A  total  loss  with  regard  to  bottomry  or  average-monies 
occurs  when  the  objects  which  have  been  bottomried,  or  for  which 
average-monies  luive  been  advanced  or  expended,  have  either  been 
subjected  to  total  loss  or  to  other  accidents  in  such  a  degree  that  in 
consequence  of  injuries,  hypothecations,  or  other  liabilities  thereby 
occasioned  nothing  has  been  left  to  cover  such  monies. 

Art.  862.  In  case  of  "total  loss  the  underwriter  has  to  pay  the  full 
amount  insured,  without  prejudice,  however,  to  such  deductions,  if 
any,  as  may  be  allowed  according  to  the  stipulations  of  Art.  804. 

Art.  863.  If  in  case  of  total  loss  anything  has  been  saved  before  the 
paymcMit  of  the  sum  insured,  the  proceeds  of  the  objects  saved  shall 
be  deducted  therefrom.  If  the  insurance  was  not  elVected  for  the  full 
value,  only  a  proportionate  part  of  the  value  saved  is  to  be  deducted 
from  the  sum  insured. 

Oil   ]);iynn'iit  of  tin-  sum    for   iiisur,uic('   (he  I'ights   of  the    assured 

iI)pOIi    tin-   ilisiir-c(|    (ilijcct    p;i^S   to   tlir   lllldiTW  lii  r|'. 


ArPENDIX.  779 

If  a  total  oi-  partial  salvage  occurs  after  the  payment  of  the  insured 
sum,  the  underwriter  alone;  is  entitled  to  such  subsecjuent  salvage. 
If  the  insurance  was  not  made  for  the  full  value,  the  underwriter  is 
only  entitled  to  a  proportionate  part  of  what  has  been  saved. 

Art.  864.  If  in  case  of  a  total  loss  with  regard  to  imaginary  profit 
(Art.  860)  the  goods  have  during  the  voyage  been  so  advantageously 
sold  that  the  net  proceeds  amount  to  more  than  the  insurable  value  of 
the  goods,  or  when  more  than  that  value  has  been  paid  as  indemnity 
for  them,  if  they  have  been  sacrificed  in  case  of  General  Average  or  if 
they  are  to  be  made  good  in  conformity  with  Articles  612  and  613, 
the  surplus  is  to  be  deducted  from  the  insured  sum  of  the  imaginary 
profit. 

Arf.  865.  The  assured  is  entitled  to  demand  jiayment  in  full  of  1  he 
insured  sum  upon  cession  of  his  rights  against  tlu;  insured  object  in 
the  following  cases  (abandonment)  — 

1.  When  the  vessel  is  missing  ; 

2.  When  the  object  of  the  insurance  is  in  danger  from  the  fact  of 

the  vessel  or  goods  being  laid  under  embargo  or  seized  by  a 

belligerent  or  otherwise  arrested  by  order  of  Government, 

or   captured  by  pirates,  and  not   being    released   within   a 

period  of  six,   nine,  and    twelve   months,  according  as   the 

detention,  seizure,  or  capture  has  occurred — 

(«-/)  In  a  European  port  or  on  a  European  sea,  or  in  any  port, 

even  if  not  belonging  to  Europe,  of  the   Mediterranean 

and  Black  Sea,  or  of  the  Sea  of  Azof  ;  or, 

(/>)  In   any  other  water,  but   on   this   side  of  the   Cape  of  Good 

Hope  or  of  Cape  Horn  ;  or, 
(c)  In  any  water  on  the  other  side  of  either  of  these  promontories. 
The  periods  are  to  be  calculated  from  that  day  on  which  the  acci- 
dent has  been  notified  to  the  underwriter  by  the  assured  (Art.  822). 

Art.  866.  A  vessel  which  has  commenced  a  voyage  is  to  be  con- 
sidered as  missing  when  it  has  not  reached  the  port  of  destination 
within  the  time  allowed,  and  when  the  interested  parties  have  received 
no  news  about  it  within  such  period. 

The  time  allowed  as  the  period  of  presumptive  loss  amounts — 

(1)  To  si.x:  months  for  sailing  vessels  and  four  months  for  steamers, 

when  both  the  port  of  departure  and  the  port  of  destination 
are  European  ports  ; 

(2)  To  nine  months  for  sailing  and  steam  ships  if  either  the  port  of 

departure  or  the  port  of  destination  is  a  non-European  port, 
but  situate  on  this  side  of  the  Cape  of  Good  Hope  aiid  of 
Cape  Horn  ;  and    to  twelve  months   for  sailing  and  st(>am 


780  MARITIME    LEGISLATIOX. 

vessels  if  tlie  said  iion-Eurojjean  port  is  situate  on  the  other 
side  of  eitlier  of  the  said  promontories  ; 
(3)  To   six,  nine,   or  twelve   months   respectively   for  sailing    and 
steam  vessels,  when  both  the  ports  of  sailing  and  destination 
are  non-European  ports,  according  as  the  average  duration 
of  the  voyage  may  be  taken  as  not  more  than  two,  not  more 
than  three,  or  more  than  three  montlis. 
In  doubtful  cases  the  longer  term  must  be  allowed. 
Art.  867.  The  period  of  presumptive  loss  is  calculated  from  the  day 
on  -which  the  vessel  commenced  her  voyage.     If,  however,  since  the 
sailing,  intelligence  respecting  her  have  been  received,  the  term  allowed 
for  presumptive  loss  shall  be  calculated  from  the  day  to  which  the  last 
information  reaches  for  such  a  period  as  would  be  granted  if  the  voyage 
had  commenced  at  the  point  where  according  to  reliable  information 
the  vessel  was  last  seen. 

Art.  868.  The  declaration  of  abandonment  must  have  been  com- 
municated to  the  underwriter  within  the  period  allowed  for  abandon- 
ment. 

The  period  allowed  for  abandonment  amounts  to  six  months,  when 
in  case  of  presumptive  loss  of  the  vessel  (Art.  8G5,  No.  1),  the  port  of 
destination  is  a  European  port,  and  -when  in  the  case  of  detention, 
seizure,  or  capture  (Art.  865,  No.  2),  the  same  has  taken  place  in  a 
European  port  or  a  European  sea  or  in  a  part  of  the  Mediterranean  or 
Black  Sea  or  of  the  Sea  of  Azof,  even  though  not  belonging  to  Eui'ope. 
In  otlier  cases  the  period  allowed  for  abandonment  amounts  to  nine 
months.  The  period  allowed  for  abandonment  commences  at  the 
expiration  of  the  terms  mentioned  in  Articles  865  and  866. 

In  case  of  re-insurance  the  period  allowed  for  abandonment  begins 
at  the  expiration  of  the  day  on  which  the  re-insured  underwriter  has 
received  the  declaration  of  abandonment  from  his  assured. 

Art.  869.  After  the  expiration  of  the  period  allowed  for  abandon- 
ment an  abandonment  is  inadmissible,  without  prejudice  to  the  rights 
of  the  assured  to  claim  compensation  for  a  loss  upon  other  grounds. 

When  in  case  of  a  presumptive  loss  of  the  vessel  the  period  allowed 
for  al)andonment  has  not  been  kept,  the  assured,  although  entitled  to 
demand  payment  of  a  total  loss,  shall  nevertheless,  in  case  the  assured 
object  is  again  bi'ought  to  light,  and  it  appears  thereby  that  no  total 
loss  had  occurred,  refund  the  sum  insured  to  the  underwriter  at  his 
request  and  on  his  relinquishing  the  I'ights  acquii'ed  under  Art.  863  by 
payment  of  the  sum  insured,  and  shall  lie  contented  to  receive  instead 
compensation  for  a  partial  loss  if  any  has  been  sustained. 

Art.  870.   In  oidcr  to  l)e  valid  tin-  dfi-laration  of  aljandounuMit  must 


APPENDIX.  781 

be  Jiiade  without  reserve  or  condition,  and  must  extend  to  tlie  wliole 
object  insured,  so  far  as  tlie  latter  at  the  time  the  accident  happened 
was  exposed  to  the  perils  of  the  sea. 

If,  however,  the  insurance  was  not  concluded  for  the  full  value,  the 
assured  is  only  bound  to  abandon  a  proportionate  part  of  the  insured 
object. 

The  declaration  of  abandonment  is  irrevocable. 

Art.  871.  The  declaration  of  abandonment  is  devoid  of  legal  effect, 
if  the  circumstances  upon  which  it  is  based  are  not  confirmed  or  have 
ceased  to  exist  at  the  time  the  declaration  is  made.  On  the  other  hand, 
it  continues  binding  upon  both  parties  even  when,  at  a  subsequent 
period,  circumstances  supervene  the  earlier  occurrence  of  which  would 
have  precluded  the  i-ight  to  abandon. 

Art.  872.  By  the  declai-ation  of  abandonment  all  rights  of  the 
assured  with  respect  to  the  insured  object  are  transferred  to  the  under- 
writer. 

The  assured  is  Ijound  to  secure  the  underwriter  against  all  real 
property  liens  attaching  to  the  abandoned  object  at  the  time  of  the 
declaration  of  abandonment,  unless  the  same  arise  out  of  perils  for 
which  the  underwriter  would  be  liable  according  to  tlie  contract  of 
insurance. 

If  the  vessel  is  abandoned,  the  underwriter  is  entitled  to  tlie  net 
amount  of  freight  of  the  voyage  on  which  the  casualty  has  occurred,  so 
far  as  the  freight  has  not  been  earned  until  after  the  declaration  of 
abandonment.  This  portion  of  the  freight  shall  be  calculated  in  con- 
formity with  the  principles  laid  down  for  ascertaining  the  amount  of 
distance  freight. 

If  the  freight  has  been  separately  insured  the  underwriter  thereon 
shall  make  good  the  loss  thereby  entailed  upon  the  assured. 

Art.  873.  Payment  of  the  sum  insured  can  only  be  demanded  when 
the  documents  justifying  the  abandonment  have  been  communicated 
to  the  underwriter  and  a  proper  interval  has  been  allowed  for  their 
examination.  If  the  abandonment  takes  place  on  account  of  presump- 
tive loss  of  the  vessel  the  documents  to  be  communicated  must  include 
reliable  certificates  respecting  the  date  of  sailing  from  the  port  of 
departure  and  I'especting  its  non-arrival  at  the  port  of  destination 
during  the  period  allowed  for  presumptive  loss. 

The  assured  shall  at  the  time  of  making  his  declaration  of  abandon- 
ment, so  far  as  lies  in  his  power,  inform  the  underwriter  whether  any 
and  what  other  insurances  have  been  effected  upon  the  object  abandoned, 
and  whether  any  and  what  bottomry  liabilities  and  other  incumbrances 
thereon  are  in  existence.     If  this  information  has  been  omitted  the 


782  MAPJTIMK    LEGISLATION. 

underwriter  may  refuse  payment  of  tlie  sum  insured  until  the  informa- 
tion has  been  sujiplied  ;  if  a  term  of  payment  lias  been  agreed,  such 
term  commences  only  from  the  time  when  the  supplementary  notification 
has  been  given. 

Ari.  874.  The  assured  is  obliged,  even  after  declaration  of  abandon- 
ment, to  give  attention  to  the  saving  of  the  insured  objects  and  the 
prevention  of  increased  loss  as  laid  down  by  Art.  823,  and  shall  continue 
to  do  so  until  the  underwriter  himself  is  in  a  position  to  take  the  matter 
in  hand. 

If  the  assured  should  receive  information  that  any  object  looked 
upon  as  lost  has  been  again  brought  to  light,  he  shall  immediately 
acquaint  the  underwriter  thereof,  and  shall  at  his  request  render  him 
every  assistance  necessary  for  the  recovery  or  realisation  of  the  object 
in  question. 

The  underwriter  shall  repay  the  expenses  ;  he  shall  also  provide  the 
assured  at  his  request  with  a  sufficient  advance. 

Art.  875.  If  the  underwriter  acknowledges  the  validity  of  the 
abandonment  the  assured  shall  supply  him  at  his  request  and  expense 
with  a  certified  attestation  of  the  transfer  of  rights  effected  in  conse- 
quence of  the  declaration  of  abandonment  according  to  Art.  872,  and 
shall  deliver  to  him  the  documents  relating  to  the  objects  abandoned. 

Art.  876.  In  case  of  a  partial  damage  to  ship  the  damage  consists 
of  the  amount  of  the  expense  of  repairs  to  be  ascertained  in  conformity 
with  Articles  711  and  712,  so  far  as  the  same  relate  to  damages  at  the 
risk  of  the  underwriter. 

Art.  877.  When  the  ship  has  in  the  manner  prescribed  in  Art.  499 
been  pronounced  incapable  or  unworthy  of  repair  (Art.  444)  the  assured 
may,  as  far  as  the  underwriter  is  concerned,  put  the  vessel  or  the  wreck 
up  for  sale  by  public  auction,  and  in  case  of  sale  the  loss  consists  of  the 
dift'erence  between  the  net  proceeds  and  the  insured  value. 

The  risk  of  the  underwriter  terminates  only  with  the  sale  of  the 
vessel  or  of  the  wreck  ;  the  underwriter  is  also  answerable  for  the  due 
payment  of  the  purchase-money. 

In  estimating  the  value  of  the  ship  in  a  sound  state,  which  is  necessary 
for  the  purpose  of  determining  whether  it  is  unworthy  of  repair,  its 
insurable  value,  no  matter  whether  such  value  have  or  have  not  been 
estimated,  is  left  altogether  out  of  the  question. 

Art.  878.  The  commencement  of  such  repairs  does  not  preclude  the 
exercise  of  the  rights  of  the  assured  under  the  previous  Article,  when 
important  damages  have  only  subsequently  appeared,  which  the  assured 
iiad  innocently  failed  to  discover. 

When   <h<'  ;issurcd  avails  himself  suVjsequently   of    this  right,   the 


xVPPENDlX.  783 

uiulorNvriter  .sliiiU  pay  separately  tin-  amounts  ali'eady  expended  in  re- 
pairs, so  far  as  in  consequence  of  such  repairs  a  hi<fher  price  has  been 
realised  at  the  sale  of  the  ship. 

Art.  879.  When  goods  arrive  at  the  port  of  destination  in  a  damaged 
state,  the  percentage  of  value  lost  upon  the  goods  shall  be  ascertained 
by  a  comparison  of  their  actual  gross  ^■alue  there  in  damaged  state, 
with  the  gross  value  which  they  would  have  had  there  in  their  sound 
state.  The  same  percentage  of  the  insuraljle  value  is  to  be  taken  as 
the  amount  of  the  damage. 

The  value  of  the  goods  in  damaged  state  is  to  be  ascertained  by 
public  sale,  or,  if  the  underwriter  consents,  by  valuation.  The  value 
which  the  goods  would  have  had  in  a  sound  state  is  to  be  ascertained 
agreeably  to  the  regulations  laid  down  by  the  first  and  second  paragraphs 
of  Art.  G12. 

The  underwriter  shall  also  n;ake  good  the  expenses  of  survey, 
valuation,  and  sale. 

Ai't.  880.  When  a  portion  of  the  goods  has  been  lost  in  the  course 
of  the  voyage,  the  damage  consists  in  the  same  percentage  of  the 
insurable  value  as  has  been  lost  of  the  value  of  the  goods. 

Art.  881.  When  goods  have  been  sold  in  the  course  of  the  voyage 
in  consequence  of  a  casualty,  the  damage  consists  in  the  difference 
between  the  net  proceeds  of  tlie  goods  after  deduction  of  the  freight, 
duties,  and  sale  expenses,  and  their  insurable  value. 

The  risk  taken  by  the  underwriter  terminates  only  upon  the  sale  of 
the  goods  ;  the  underwriter  is  also  answerable  for  due  payment  of  the 
]iurchase-money. 

The  stipulations  of  Articles  138-842  are  not  affected  by  the  pro- 
visions of  this  Article. 

Art.  882.  In  case  of  partial  loss  of  the  freight,  the  loss  consists  of 
such  portions  of  the  stipulated  freight,  or,  if  no  freight  has  been  stipu- 
lated, then  of  the  current  freight,  as  shall  have  been  lost. 

If  the  freight  has  beeiv  valued,  and  such  valuation  is,  in  conformity 
with  the  fourtli  paragraph  of  Art.  797,  decisive  as  to  the  loss  to  fall 
upon  the  underwriter,  then  the  loss  consists  of  the  same  percentage  of 
the  valuation  as  has  been  lost  of  the  stipulated  or  current  freight. 

Art.  883.  If,  in  the  case  of  imaginary  profit  or  of  commission  ex- 
pected upon  arri\al  of  the  goods,  tlie  latter  arrive  in  a  damaged  con- 
dition, the  damage  consists  in  the  same  percentage  of  the  amount 
insured  upon  profit  or  connuission  as  the  damage  to  the  goods  ascer- 
tained according  to  Art.  879  bears  in  proportion  to  the  insurable  value 
of  the  goods. 

If  some  portion  of  the  goods  have  not  re;ichcd  the  port  of  destina- 


784  MARITIME    LEGISLATION'. 

tion  tlie  damage  consists  of  the  same  percentage  of  the  amount  insured 
upon  profit  or  commission  as  the  value  of  the  goods  not  arrived  in  the 
port  of  destination  is  to  the  value  of  all  tlie  goods. 

If  in  the  case  of  insurance  upon  imaginary  profit  the  stipulations 
of  Art.  864  apply  to  the  non-arrived  portion  of  the  goods,  the  excess 
referred  to  in  Art.  801  sliall  be  deducted  from  the  loss. 

Art.  884.  With  respect  to  bottomry  and  average-monies  in  case  of 
partial  loss  the  damage  consists  of  the  deficiency  resulting  from  the 
fact  that  the  object  bottomried,  or  upon  which  average-monies  have 
been  advanced  or  expended,  may  from  subsequent  accidents  have 
become  insufficient  to  cover  the  bottomry  or  average-monies. 

Art.  885.  The  underwriter  shall  pay  the  full  amount  of  the  damage 
calculated  according  to  Articles  876-884,  when  the  full  value  has  been 
insured,  without  prejudice,  however,  to  the  provisions  of  Art.  804  ;  if 
the  insurance  has  not  been  effected  upon  the  full  value,  the  underwriter 
shall  only  make  good  a  proportionate  part  of  such  damage  as  stipulated 
by  Art.  796. 

iSixTii  Division. — Payment  of  Losses. 

Art.  886.  In  order  to  be  entitled  to  claim  compensation  for  a  loss 
the  assured  shall  lay  before  the  underwriter  a  statement  of  the  claim. 

He  shall  at  the  same  time  satisfy  the  underwriter  by  means  of 
sufficient  vouchers — 

(1)  Of  his  interest. 

(2)  That  the  insured  object  lias  been  exposed  to  perils  of  the  sea. 

(3)  Of  the  casualty  which  gives  rise  to  the  claim. 

(4)  Of  the  damage  and  its  extent. 

Art.  887.  Wlien  the  insurance  has  been  effected  by  an  agent  the 
assured  shall  further  show  that  the  party  taking  the  insurance  was 
authorised  by  him  to  do  so.  When  the  insurance  has  been  effi^cted 
without  authority  (Art.  786)  the  assured  must  show  the  circumstances 
by  which  it  is  proved  that  the  insurance  was  taken  for  his  account. 

Art.  888.  Vouchers  which  owing,  for  instance,  to  the  difficulty  of  pro- 
curinf^  other  evidence  are  ordinarily  accepted  in  mercantile  transactions 
without  objection  are  generally  to  be  considered  as  sufficient,  such  as  for 
proof  of  interest  : 

(1)  Tlie  ordinary  documents  of  ownership,  in  case  of  insurance  on 
ship  ;  the  invoices  and  bills  of  lading  so  far  as  from  their 
contents  is  aj)[)arent  that  the  assured  is  entitled  to  the 
ownership  of  sucli  goods  in  case  of  insurance  on  goods. 
The  charter-parties  and  Ijills  of  lading  in  case  of  insurance 
on  ficii/ht. 


Al'l'KNDlX.  785 

(2)  The  bills  of  lading  as  proof  of  siiipmeut  of  the  goods. 

(3)  The  extended  protest,  and  the  ship's  log-book  (Articles  488  and 

494),  as  proof  of  the  casualty  ;  the  sentence  of  the  prize 
court  in  case  of  condemnation  ;  reliable  certificates  as  to 
the  date  of  sailing  of  tlu;  vessel  fi-oin  tlie  port  of  departure, 
and  as  to  its  non-arrival  at  the  port  of  destination  within  the 
period  allowed  for  presumptive  loss  in  case  of  the  latter. 

(4)  Documents  of  survey,  valuation,   and   sale  by  public  auction, 

drawn  up  conformably  to  the  laws  or  usages  of  the  place 
where  the  damage  was  verified,  also  estimates  of  the  expenses 
drawn  up  by  experts,  also  the  receipted  accounts  for  repairs 
executed  and  other  receipts  for  payments  made,  as  proof  of 
the  damage  and  its  extent ;  with  respect  to  partial  damage 
*     to  the  vessel  (Articles  876,  877),  however,  the  documents  of 
survey  and  valuation,  and  the  estimates  of  repairs,  are  only 
admissible  when  damages  arising  from  wear  and  tear,  age, 
decay,  or  worm  are  duly  specified  therein,  and  when,  at  the 
same  time,  so  far  as  was  practicable,  such  experts  luive  been 
employed  as  have  either  been  permanently  and  officially  ap- 
pointed or  especially  selected  by  the  local  tribunal,  or  by  the 
consul  of  the  country,  or  in  default  or  in  the  absence  of  such 
otHcials,  then  by  some  other  public  authority. 
Art.  889.  Even  in  case  of  a  lawsuit  the  documents  mentioned  in 
Art.  888  are  usually,  and  so  far  as  special  circumstances  do  not  give 
rise  to  suspicion,  to  be  received  as  evidence. 

Art.  890.  An  agreement,  to  exonerate  the  assured  from  the  burden 
of  proving  the  circumstances  mentioned  in  Art.  886,  or  any  portion 
thereof,  is  valid,  without  prejudice,  however,  to  the  right  of  the  under- 
writer to  px'ove  the  contrary. 

An  agreement  made  at  the  time  of  the  insurance  of  goods,  that  jjro- 
duction  of  the  bill  of  lading  should  be  dispensed  with,  does  away  only 
with  the  necessity  of  proving  the  shipment. 

Art.  891.  When  an  insurance  is  effected  by  an  agent,  the  party 
taking  the  insurance  may,  without  production  of  a  power  of  attorney 
from  the  assured,  make  use  of  the  powers  reserved  to  the  assured  by 
the  contract  of  insurance,  and  may  receive  and  enforce  payment  of 
the  sums  insured.  Hliould,  howevei-,  a  policy  have  been  issued,  this  rule 
applies  only  when  the  party  taking  the  insurance  produces  the 
same. 

If  the  insurance  has  been  t:lk^n  without  instructions,  the  party 
taking  the  insurance  requires  tlie  consent  of  the  assured  in  order  to 
receive  or  enforce  payment  of  the  sums  insured. 


785  MARITIME    LEGISLATIOX. 

Art.  892.  When  a  policy  lias  been  issued  the  underwriter  shall  pay 
tli3  suras  insured  to  the  assured  upon  production  of  the  policy. 

Art  893.  The  party  taking  the  insurance  is  not  bound  to  deliver  the 
policy  to  the  assured  or  to  his  creditors  or  to  his  assignees  in  bankruptcy 
before  his  claims  against  the  assured,  with  reference  to  the  insured 
obiect  have  been  satisfied.  In  case  of  a  loss  the  party  taking  the  in- 
surance may  pay  himself  for  such  claims  out  of  the  amounts  due  from 
t!i8  underwriter,  and  retain  the  amounts  out  of  the  insured  sums  when 
received  in  preference  to  the  assured  and  his  creditoi's. 

Art.  894.  The  underwriter  makes  himself  responsible  to  the  party 
takin'i'  the  insurance,  if  he,  while  the  latter  is  still  in  possession  of  the 
policy,  prejudices  his  rights  under  Art.  893,  eitlier  by  payments  to  the 
assured  or  his  creditors,  or  his  assignees  in  bankruptcy,  or  by  agree- 
ments entered  into  with  such  parties. 

The  pi'ovisions  of  the  common  law  determine  how  far  the  under- 
writer makes  himself  responsible  to  third  parties  who  have  acquired  an 
interest  in  the  policy,  by  entering  into  agreements  respecting  their  in- 
tei'ests  or  by  paying  over  sums  insured  without  requiring  cession  of  the 
policy,  or  without  making  the  necessary  endorsement  thereon. 

Art.  895.  If  the  underwriter  is  called  upon  to  pay  the  sums  insured, 
he  may  not,  in  case  of  an  insurance  effected  as  agent,  set  off  claims 
which  he  may  have  against  the  party  taking  the  insurance. 

Art.  89G,  The  assured  may  cede  to  a  third  party  not  only  claims  for 
compensation  due  to  him  on  account  of  an  accident  which  has  already 
occurred  but  also  possible  claims  to  arise  out  of  future  accidents.  If  a 
policy  has  been  issued  to  order,  the  same  may  be  transferred  by  endorse- 
ment, the  provisions  of  the  Articles  301,  303,  305  being  applicable  as 
concerns  such  endorsement.  In  case  of  insurance  as  agent  the  endorse- 
ment of  the  party  taking  the  insurance  is  sufficient  for  the  validity  of 
the  first  transfer. 

Art.  897.  When  after  the  expiration  of  two  months  from  the  notifi- 
cation of  the  casualty  the  statement  of  claim  (Art.  886)  has,  without 
fault  of  the  assured,  not  as  yet  been  produced,  but  the  lowest  amount 
due  by  the  underwriter  has  been  approximately  ascertained,  the  latter 
shall  pay  this  amount  as  on  account  of  his  liability,  not  however  until 
expiration  of  the  period  stipulated  for  the  payment  of  the  sum  insured. 
If  the  period  allowed  for  payment  is  to  commence  from  the  time  when 
the  statement  of  claim  has  been  laid  before  the  undei-writer,  such  period 
shall  in  the  sense  of  this  Article  be  calculated  from  the  time  wlien  tlie 
underwriter  has  received  the  pro  formd  estimate. 

j\rt.  808.  The  underwriter  shall  make  payment  in  advance  of — 
(1)  Twc-thii-dsof  the  aiimunt  (•'aimablf  from  him  in  cases  of  average 


APPI'NDIX.  787 

on  account  of  his  liability  to  be  subsequently  ascertained, 
towards  the  expenses  of  salving,  preservation  or  rehabilitation 
of  tlie  insured  object ; 
(2)  In  case  of  capture  of  the  ship  or  goods  the  full  amount  due  from 
him  towards  the  costs  of  the  suit  of  reclamation,  so  far  as 
the  same  may  be  rendered  necessary. 

Seventh  Division. — C.vNCELLiNf:  the  Insurance  and  Repayment 
OF  THE  Premium. 

Art.  899.  When  the  adventure  to  which  the  insurance  relates  is 
wholly  or  partially  abandoned  by  the  assured,  or  when  v/ithout  his 
agency  the  insured  object  wliolly  or  in  part  is  not  exposed  to  the  risk 
which  the  underwriter  was  to  bear,  either  the  whole  or  a  proportionate 
part  of  the  prem.ium  may  be  reclaimed  or  withheld,  less  a  suitable  bonus 
due  to  the  underwriter  (ristorno). 

When  no  specified  amount  is  agreed  upon  or  usual  at  the  place  where 
the  insurance  is  effected,  the  bonus  (allovv^ance  for  ristorno)  consists  of 
one-half  per  cenf,.  of  the  entire  sum  insured  or  of  tlie  corresponding 
portion  thereof  ;  if,  however,  the  premium  does  not  amount  to  one  per 
cent,  of  the  sum  insured,  then  of  one-half  of  the  whole  premium  or  of 
the  proportionate  part  thereof. 

Art.  900.  If  the  insurance  is  invalid  on  account  of  want  of  in- 
surable interest  (Art.  782),  or  on  account  of  over-insurance  (Art.  790), 
or  on  account  of  double  insurance  (Art.  792),  the  premium  may  here 
also  be  reclaimed  or  withheld,  with  the  exception  of  the  bonus  stipulated 
in  Art.  899,  provided  that  the  party  taking  the  insurance  has  acted 
bond  fide  in  effecting  the  same,  and  in  case  of  an  insurance  as  agent 
the  assured  has  also  acted  bond  fide  at  the  time  of  giving  the  order. 

Art.  901.  Tlie  rules  laid  down  Vjy  Articles  899  and  900  apply  even 
if  the  iusuraiice  contract  is  void  as  against  the  underwriter  on  ac- 
count of  violation  of  the  rules  foi'  giving  information,  or  for  other 
reasons,  even  if  the  underwriter  notv.-ithstanding  such  invalidity  would 
be  entitled  to  the  full  premium. 

Art.  902.  A  I'eturn  of  premium  does  not  take  place  if  tlie  under- 
writer's risk  has  already  attached. 

Art.  903.  If  the  underwriter  has  become  insolvent,  the  assured  may 
at  his  option  either  withdraw  from  the  contract  and  reclaim  or  withhold 
the  whole  premium,  or  may  take  a  new  insurance  at  the  expense  of  the 
underwriter  according  to  Art.  793.  He,  however,  may  not  exercise 
this  option,  if,  previous  to  his  withdrawing  from  the  contract  or  takinor 
a  new  insurance,  sufficient  security  is  given  to  him  for  the  fulfilment 
of  the  liabilities  of  the  underwriter. 

3  R  2 


788  MARITIME    LEGISLATION. 

Art.  904.  If  the  insured  object  changes  hands,  the  riglits  appertain- 
ino-  to  the  assured  by  virtue  of  the  insurance  contract,  as  regards  possible 
future  accidents  may  be  transferred  to  the  new  owner  in  such  a  manner 
that  the  new  owner  is  entitled  to  claim  against  the  underwriter  to  the 
same  extent  as  if  no  transfer  had  taken  place  and  as  if  the  assured 
himself  enforced  the  claims. 

The  underwriter  takes  no  responsibility  for  perils  which  would  not 
have  arisen  if  no  transfer  had  taken  place. 

He  may  not  only  make  use  of  the  same  pleas  and  counter-claims  to 
which  he  would  be  entitled  against  the  new  owner  direct,  but  also  of 
those  which  he  might  have  been  entitled  to  make  use  of  against  the 
assured  ;  not,  however,  of  such  as  do  not  arise  out  of  the  contract  of 
insurance,  except  so  far  as  they  have  been  in  existence  previous  to  tlie 
notification  of  the  transfer. 

The  legal  effects  of  a  transfer  by  endorsement  of  a  policy  made  out 
to  order  ai-e  not  affected  by  the  foregoing  enactment. 

Art.  905.  The  provisions  of  Art.  904  are  also  applicable  to  insur- 
ances upon  a  share  in  a  vessel. 

If  the  vessel  itself  is  insured,  the  same  apply  only  when  the  vessel 
has  changed  owners  in  the  course  of  the  voyage.  The  commencement 
and  termination  of  the  voyage  are  determined  according  to  Art. 
827.  When  the  vessel  has  been  insured  for  time  or  for  several 
voyages  (Art.  760),  the  insurance  only  remains  in  force,  in  case  of  a 
change  of  ownership  during  a  voyage,  up  to  the  discharge  of  the  vessel 
in  the  next  port  of  destination  (Art.  827). 


TWELFTH   PART. 

Statntory  Limitations. 


Art.  90G.   The  claims  enumerated  in  Art.  757  are  only  in  force  for 
one  ypar.     Tlie  limit  extends,  however,  to  two  years  — 

(1)  For  claims  of  the  crew  arising  out  of  contracts  of  service  or 

wages  when  the  discharge  has  taken  place  on  the  other  side 
of  the  Cape  of  Good  Hope  or  of  Cape  Horn  ; 

(2)  For    claims    for    compensation  arising  out  of  the  collisions  of 


vessels. 


y1/7.  1)(j7.  'I'lie  li;.iitiiii()ii  imposed  by  the  previous  Article  extends 
also  to  personal  claims  of  tin;  creditor  against  llie  sliipownta- or  a  person 
belonging  tf)  the  crew. 

Art.  908.    The  period  of  liniit.it  inn  is  reckoned  — 


APrENDIX.  789 

(1)  With  respect  to  claims  of  the  crew  (Art.  757,  No.  i),  from  the 

expiration  of  the  day  on  wliicli  the  contracts  of  service  or 
wages  come  to  an  end,  and,  if  the  institution  of  legal  pro- 
ceedings is  sooner  possible  and  admissil>le,  from  the  expiration 
of  the  day  on  whicli  such  possibility  and  admissibility  takes 
place  ;  the  right,  however,  to  demand  payments  in  advance 
or  on  account  docs  not  affect  tlie  commencement  of  the  period 
of  limitation  ; 

(2)  With  respect  to  claims  for  injui-y  to  or  for  undue  delay  in  the  de- 

livery of  goods  and  personal  effects  (Art.  757,  Nos.  8  and  10) 
and  for  contributions  to  General  Average  (Art.  757,  No.  6), 
from  the  expiration  of  the  day  on  which  the  delivery  has 
taken  place  ;  with  respect  to  claims  for  non-delivery  of  goods, 
from  the  expiration  of  the  day  on  which  the  vessel  reaches  the 
port  where  the  delivery  should  have  taken  place,  and,  if  such 
port  is  not  reached,  from  the  expiration  of  the  day  on  which 
the  party  interested  has  first  had  notice  of  that  fact  as 
well  as  of  the  damage  ; 

(3)  With  respect  to  claims  caused  by  the  default  of  a  member  of 

the  crew  (Art.  757,  No.  10)  not  coming  under  head  2  of  this 
Article  from  the  expiration  of  the  day  on  which  the  party 
interested  receive  notice  of  the  damage  ;  with  respect,  how- 
ever, to  claims  for  compensation  arising  out  of  the  collision 
of  vessels,  from  the  expiration  of  the  day  on  which  the  col- 
lision occurred  ; 

(4)  With  respect  to  all  other  claims,  from  the  expiration  of  the  day 

on  which  the  claim  becomes  due. 

Art.  909.  One  year  is  also  the  period  of  limitation  for  the  claims 
for  which  the  goods  are  responsible  with  respect  to  the  freight 
and  all  extra  charges  connected  therewith,  to  demurrage,  to  outlay  for 
duties  and  other  expenses,  to  bottomry  monies,  contributions  to  General 
Average,  salvage  and  assistance  expenses,  as  also  for  all  personal  claims 
against  parties  interested  in  the  cargo  and  for  claims  on  account  of 
passage-monies. 

The  period  of  limitation  commences,  as  regards  contributions  to 
General  Average,  from  the  expiration  of  the  day  on  which  the  con- 
tributory goods  have  been  delivered,  with  respect  to  other  claims  from 
the  expiration  of  the  day  on  which  they  have  become  due. 

Art.  910.  Claims  of  the  underwriter  and  of  the  assured  arising  out 
of  the  contract  of  insurance  are  not  enforceable  after  five  years. 

The  period  of  limitation  commences  from  the  expiration  of  the  last 
day  of  the  year  in  which  the  insured  voyage  has  terminated,  and,  iu 


700  MAKITI.ME    LEGISLATION. 

case  of  insurance  for  time,  from  the  expiration  of  tlie  clay  on  wliich  the 
insured  pei-iod  terminates.  In  case  of  presumptive  loss  of  the  vessel, 
it  commences  from  the  termination  of  the  day  on  which  the  period 
allowed  for  receipt  of  news  comes  to  an  end. 

Art.  911.  A  claim  which,  according  to  Articles  906-910,  has  lapsed 
cannot  be  enforced  as  a  counter-claim  or  otherwise  by  way  of  set-oft',  if 
it  had  already  lapsed  at  the  time  that  such  other  claim  originated. 


I. 

BEGULATION  FOB   SEAMEN  OF  DECEMBER  27,   1872. 

"We,  William,  by  the  grace  of  God,  Gei'man  Emperor,  King  of  Prussia, 
etc.,  tfec,  order  in  the  name  of  the  German  Empire,  with  the  consent 
of  the  Confederate  Council  and  of  the  Parliament,  as  follows  : — 

FIRST   SECTION. 
Introductory  Regulations. 

§  1.  The  provisions  of  this  law  apply  to  all  merchant  vessels  (law 
of  October  25,  1867)  which  have  the  right  to  carry  the  national  flag. 

§  2.  Master  in  the  sense  of  this  law  is  the  commander  of  the  vessel 
(ship-captain),  and  in  default,  or  if  he  is  prevented,  his  substitute. 

§  3.  The  'crew  '  im-ludes  all  ofhcers  of  the  ship  except  the  master; 
and  in  like  manner  the  word  'seaman'  includes  every  ship's  officer 
except  the  master. 

Persons  not  belonging  to  the  crew,  but  appointed  on  board  a  vessel 
as  engineer,  steward,  or  in  any  other  capacity,  shall  be  subject  to  the 
same  rights  and  duties  as  have  been  enacted  in  this  law  with  respect 
to  the  crew,  there  being  no  difference  whether  they  have  been  engaged 
by  the  master  or  by  tlie  owner. 

§  4.  Seamen's  OfPces,  within  the  limits  of  the  Confederation,  are 
the  authorities  for  engaging  the  crews  in  the  several  confederate  states 
and  tlie  consulates  of  the  German  Empire  abroad. 

Tlie  establishment  of  the  authorities  for  engaging  the  crews,  or  so- 
called  shipping  offices,  witliin  tlu;  limits  of  the  Confederation,  belong  to 
the  function  of  the  tei-ritorial  government  in  accordance  with  their 
respective  laws.  The  business  conduct  thereof  is  subject  to  the  super- 
vision of  \\\c  Em[)ire. 


.\l'Pi;NItI\.  701 

SECOND   SECTION. 
Sea  Voyay.'i  Books  aiul  Arficks 

§  5.  No  one  witliiii  the  liinits  of  the  Confederation  may  take  ser- 
vice as  a  seaman,  unless  ho  has  previously  proved  his  name  and  age 
before  a  )Seamen's  OHice  and  received  from  it  a  sea  voyage  book. 

If  the  seaman  is  a  German,  he  must  not  be  alhnved  to  take  service 
on  board  ship  Ijefoi-e  he  is  fourteen  years  of  age  ;  he  must  also  prove 
his  military  relations,  and  if  he  is  still  subject  to  parental  control  or  a 
minor,  the  consent  of  the  father  or  guardian  to  take  service  on  board 
ship. 

A  copy  of  the  '  Regulation  for  Seamen,'  and  the  law  resi:)ecting  the 
duty  of  German  merchant  vessels  to  take  seamen  in  distress  on  board, 
must  be  handed  to  the  seaman  together  with  the  sea  voyage  book. 

§  6.  The  parental  consent,  or  that  of  the  guardian,  unless  limited, 
is  considered  as  given  once  and  for  evei*. 

In  vii'tue  of  it  the  minor  will  be  treated  as  of  age  in  so  far  as  wages 
agreements  are  concerned,  as  well  as  regai-ding  the  rights  and  duties 
and  legal  proceedings  connected  therewith. 

§  7.  Whoever  has  received  a  sea  voyage  book  must,  in  order  to 
obtain  a  new  sea  voyage  book,  produce  the  old  one  or  prove  its  loss. 
That  this  has  been  done  will  be  certified  in  the  new  sea  voyage  book 
by  the  Seamen's  Olfice. 

If  the  loss  be  proved,  a  statement  from  the  Seamen's  Office  will  bo 
added  to  this  certificate  respecting  the  former  rank  and  service  details, 
as  well  as  respecting  the  length  of  service,  in  so  far  as  the  seaman  can 
sufficiently  prove  the  same. 

§  8.  Whoever,  according  to  the  contents  of  the  sea  voyage  book, 
lias  been  engaged  must  not  be  allowed  to  enter  a  new  engagement 
before  he  can  prove  the  termination  of  the  previous  service  by  the 
proper  entry  in  the  sea  voyage  book  (§§  20,  22).  If  in  the  opinion  of 
the  Seamen's  Office  such  an  entry  cannot  be  adduced,  but  the  termina- 
tion of  the  service  can  otherwise  be  credibly  proved,  a  statement 
entered  into  the  sea  voyage  book  by  the  Seamen's  Office  is  to  be  of  the 
same  effect. 

§  9.  The  arrangement  and  price  of  the  sea  voyage  book  are  fixed  by 
the  Confederate  Council.  The  expedition  thereof  is  free  of  charge  and 
stamp  duty. 

The  sea  voyage  book  must  state  the  military  relations  (§  .5)  of  the 
holder. 

§  10.   The   master  has  to  regulate  the  engagement  (^^hij.ping,  dis- 


792  MAPJTIME    LECilSI.ATIOX. 

charging)  of  the  crew  according  to  the   pi'ovisions  of    the    following 
articles  (§§  11  to  22), 

The  seaman  must  be  present  at  the  engagement  unless  an  unavoid- 
able obstacle  prevents  him. 

§  11.  The  engagement  consists  in  tlie  announcement  of  the  wages 
agreement  concluded  with  the  seaman  before  a  Seamen's  Office.  It 
must  take  place  for  vessels  lying  within  the  limits  of  the  Confederation 
under  production  of  the  sea  voyage  books  before  the  commencement  or 
continuation  of  the  voyage,  and  for  other  vessels  as  soon  as  a  Seamen's 
Office  be  reached. 

§  12.  The  engagement  proceedings  will  be  drawn  up  by  the 
Seamen's  Office  as  the  ship's  articles.  If  the  persons  belonging  to  the 
crew  of  a  vessel  are  not  engaged  at  the  same  time  by  one  act,  tlie 
fui'ther  expedition  will  be  on  the  basis  of  the  first  proceedings. 

The  ship's  articles  must  contain  :  Name  and  nationality  of  tlie 
vessel,  name  and  domicile  of  the  master,  name,  domicile  and  rank  of 
each  seaman,  and  the  conditions  of  the  wages  agreement,  including  any 
special  arrangements. 

In  the  ship's  articles  must  be  more  especially  stated  what  is  due  to 
the  seaman  for  food  and  drink  per  day.  Otherwise  the  arrangement  of 
the  articles  will  be  fixed  by  the  Confederation, 

§  13.  If  a  seaman  has  been  engaged  after  the  ship's  articles  have 
been  drawn  up,  the  Seamen's  Office  has  to  enter  such  engagement  on 
them. 

§  14.  At  eveiy  engagement  effected  within  the  limits  of  the  Con- 
federation, tlie  Seamen's  Office  enters  a  statement  thereof  and  the  date 
of  commencement  of  the  service  into  the  sea  voyage  book  of  each 
seaman,  which  at  the  same  time  serves  as  a  departure  or  sea  passport. 
Beyond  the  limits  of  the  Confederation  such  entry  is  only  made  when 
the  sea  voyage  book  is  produced  for  this  purpose. 

The  sea  voyage  book  has  for  the  duration  of  the  sei'vice  to  be 
taken  in  charge  by  the  master. 

§   1 .5.  If  a  seaman  who  has  been  engaged  is,  owing  to  an  unavoid 
al>le  occurrence,  prevented  from  entering  the  service,  he  is  obliged  to 
render  as  soon  as  possible  an  account  thereof  to  the  master  and  to  the 
Seamen's  Office  before  which  he  was  engagedi 

§  16.  The  discharge  consists  in  tlie  announcement  of  the  termina- 
tion of  tlie  services  on  behalf  of  the  master  and  such  of  the  crew  as  are 
to  be  discharged.  It  must  take  place  as  soon  as  the  service  is  ter- 
minated and,  unless  otherwise  agreed,  before  tlie  Seamen's  Office  of 
the  port  where  the  vessel  lies,  and  after  loss  of  the  vessel  before  the 
first  Seamen's  rifliif  w  lii.li  can  1»p  i-caclied. 


APPENDIX.  7U:3 

§  17.  Before  the  discliarge  takes  place  the  master  must  certify  in 
tlie  sea  voyage  book  of  the  seaman  about  to  be  discharged  tlie  rank 
wliich  he  occupied,  his  otlier  duty-relations  and  the  time  of  his  service, 
likewise,  if  particularly  re(iuestod,  a  character  as  to  ability.  The 
latter  must  not  be  entered  in  the  sea  voyage  book, 

§  18.  Tlie  signatures  of  tlie  master  to  tliese  entries  and  to  the 
certificate  of  character  (§  17)  are  to  be  attested  free  of  charge  and 
stamp  duty  by  the  Seamen's  Office  before  which  tlic  discharge  takes 
place. 

§  19.  Should  the  master  refuse  to  give  a  certificate  of  character 
(§  17),  or  should  it  contain  accusations  the  correctness  of  which  the 
seaman  disputes,  the  Seamen's  Office  has  to  investigate  tlie  matter  at 
tlie  request  of  the  latter,  and  to  certify  to  the  seaman  the  result  of 
such  investigation. 

§  20.  Tlie  discharge  of  a  seaman  has,  by  the  Seamen's  Office,  to  be 
noted  in  the  sea  voyage  book  and  on  the  ship's  articles, 

§  21.  After  the  expiration  of  the  voyage  or  of  the  time  to  wliicli  the 
ship's  articles  and  the  therein  contained  engagement-proceedings  refer, 
the  same  have  to  be  delivered  to  the  Seamen's  Office  before  which  the 
discharge  took  place. 

The  latter  forwards  the  same  to  the  Seamen's  Office  of  the  port  of 
registry. 

§  22.  Should  any  changes  take  place  with  the  complement  of  the 
crew  at  a  time  when  circumstances  do  not  permit  of  such  engagement 
(shipping,  discharging)  (§  10)  to  be  carried  out  in  accordance  with  the 
above  regulations,  the  master  is  obliged,  as  soon  as  he  can  reach  a 
Seamen's  Office,  to  complete  the  engagement  there,  giving  the  reasons 
which  prevented  this  from  being  previously  done,  or,  in  case  even  this 
subsequent  act  is  no  longer  possible,  to  report  the  fact. 

An  entry  as  to  such  report  will  be  made  by  the  Seamen's  Office  on 
the  ship's  articles  as  well  as  in  the  sea  voyage  book  of  the  seamen 
concerned. 

§  23.  The  costs  of  such  engaging  and  discharging,  inclusive  of  the 
expedition  of  the  ship's  articles,  have  to  be  paid  by  the  shipowner. 

The  stipulation  of  the  costs  to  be  fixed  in  equal  amounts  for  all 
Seamen's  Offices  within  the  limits  of  the  Confederation  is  reserved  for 
the  Confederate  Courcil. 

Until  this  has  taken  place  the  territorial  goAernmcnts  shall  stipulate 
the  amount  of  the  costs  to  be  charered. 


794:  .MAIJTIME    LEGISI.ATIOX. 


THIRD   SECTION. 
Contract. 


§  24.  The  validity  of  the  wages  agreement  does  not  depend  upon 
being  in  writing. 

§  25.  If  on  concluding  the  wages  agreement  no  arrangement  as  to 
the  amount  of  the  wages  is  expressly  arrived  at,  and  any  doubt  arises 
as  to  its  amount,  those  wages  will  be  considered  as  agreed  upon  which 
the  Seamen's  Office  of  the  port  where  the  seaman  was  engaged  declares 
as  usual  at  the  time  of  the  engagement. 

§  26.  If  a  seaman  engages  himself  for  any  period,  for  which  he  is 
bound  by  a  previous  agreement,  then  the  first  concluded  engagement 
has  in  preference  the  claim  to  be  fulfilled. 

If,  however,  an  official  engagement  based  on  the  later  agreement 
has  been  effected,  this  has  the  preference  should  wo  official  engagement 
for  the  first  agreement  have  taken  place. 

§  27.  When  a  seaman  has  been  engaged  after  the  ship's  articles 
have  been  executed,  the  stipulations  made  therein  with  the  other 
seamen  shall  be  applied  to  him  in  default  of  any  arrangement  to  the 
contrary  ;  he  shall  more  especially  only  be  entitled  to  the  same  Avages, 
which,  according  to  the  articles,  are  due  to  the  other  seamen  of  his 
rank. 

§  28.  The  obligation  of  tlie  seaman  to  go  on  board  with  his  effects 
and  to  enter  upon  his  duties  commences,  unless  any  other  agreement 
has  been  made,  from  the  time  of  his  engagement. 

If  the  seaman  delays  to  enter  upon  his  duties  for  more  than  twenty- 
four  hours,  the  master  is  authorised  to  witlidraw  from  the  engagement. 
The  demands  for  any  additional  expenses  to  provide  a  substitute  and 
for  other  los.ses  arising  out  of  the  delay  are  not  affected  thereby. 

§  29.  The  seaman  who  after  the  engagement  avoids  entering  upon 
or  continuing  his  duties,  can  be  forced  by  tlie  master,  through  the  Sea- 
men's Office,  to  its  fulfilment. 

The  costs  arising  tlierefrom  have  to  be  made  good  by  the  seaman. 

§  30.  The  seaman  is  obliged  to  obey  unhesitatingly  the  orders  of 
the  master  with  regard  to  the  service  of  the  ship,  and  to  perform  at  all 
times  every  work  entrusted  to  him  witli  regard  to  ship  and  to  cargo. 

He  has  to  perform  these  duties  not  only  on  board  of  the  vessel  and 
in  its  boats  but  in  ligliters  and  ashore,  as  well  under  ordinary  circum- 
stances as  wlien  under  average. 

^V'ilhl)ul     pcrinissioM    of    the    inastor    lie    is    not    al!(nved   to    h'ave 


APPENDIX.  7\)r, 

the  vessel  until  he  is  discharged.  Sliould  he  have  received  such  per- 
mission, he  must  return  at  the  time  fixed,  but  should  no  time  have  been 
fixed,  before  eight  o'clock  in  the  evening. 

§  31.  Should  the  vessel  be  in  port,  the  seaman  may  only  under  press- 
ing circumstances  be  obliged  to  work  more  than  ten  hours  per  day. 

§  32.  Should  any  danger  of  the  seas  arise,  especially  if  .shipwreck 
be  threatened,  or  .should  any  violence  and  attack  against  ship  or  cargo  be 
contemplated,  the  seaman  nmst  unhesitatingly  render  all  assistance 
ordered  for  the  preserA^ition  of  ship  and  cargo,  and  he  dare  not, 
without  permission  of  the  master,  leave  the  vessel  so  long  as  the 
master  himself  remains  on  board. 

He  is  at  the  time  of  shipwi-eck,  bound  to  render  every  assistance 
necessary  for  the  safety  of  persons  and  their  effects,  as  well  as  to  take 
care  and  secure  any  parts  belonging  to  the  ship,  its  gear  and  the  cargo, 
and  all  this  in  accordance  with  the  master's  orders,  and  to  assist  during 
any  salvage  operations  on  continuation  of  his  wages  and  maintenance. 

§  33.  The  seaman,  if  so  required,  is  bound  to  assist  at  the  extending 
of  the  protest,  and  to  confirm  his  depositions  by  oath.  He  has  to  fulfil 
this  obligation  on  payment  of  travelling  expenses  and  compensation 
for  loss  of  time,  even  if  the  wages  agreement  has  been  terminated  in 
consequence  of  the  loss  of  the  vessel  (§  .56). 

§  34.  If  after  the  voyage  has  been  commenced  it  is  found  that  any 
seaman,  with  the  exception  of  the  mate,  is  incapable  for  the  service  for 
which  he  was  engaged,  the  master  is  entitled  to  reduce  his  rank  and  to 
lower  his  wages  in  j^roportion. 

If  the  master  makes  use  of  this  power,  he  must,  as  soon  as  possible 
thereafter,  inform  the  party  concerned  of  such  resolution,  and  to  enter 
in  the  ship's  log  that  this  has  been  done,  and  when  ;  before  such 
intimation  and  entry  have  been  given  and  made,  the  lowering  of  the 
wages  does  not  take  efiect. 

§  35.  In  default  of  any  other  arrangement  the  wages  shall  be  paid 
from  the  time  of  the  engagement. 

§  36.  In  default  of  any  other  agreement  the  wages  shall  not  be  paid 
to  the  seaman  until  after  the  termination  of  the  voyage  or  on  his  dis- 
charge, if  such  should  previously  take  place.  Should  the  vessel  wholly 
or  in  part  discharge  the  cargo  in  the  first  port  of  an  intermediary  voyage, 
the  seaman  may,  if  six  months  have  elapsed  since  his  engagement, 
demand  one  half  of  the  wages  due  to  him.  In  like  manner  the  seaman 
is,  after  the  expiration  of  a  further  six  months  from  such  date,  entitled 
to  the  payment  of  half  of  the  wages  earned  since. 

§  37.  In  default  of  any  agreement  the  usage  of  the  port  where 
the  seaman  is  engaged  determines  if,  and  to  what  extent,  before  the 


790  MARITIME    LEGISLATION. 

commencement  of  the  voyage  advances  on  account  of  wages  shall  be 
made  or  any  earnest-monies  are  to  be  paid. 

§  38.  AU  payments  to  seamen  must,  according  to  their  choice,  be 
made,  unless  otherwise  agreed,  either  in  cash  or  by  sight  draft  on  the 
owner. 

§  39.  Before  commencement  of  the  voyage  the  master  must  open  an 
account-book,  in  whicli  all  advances  and  payments  on  account  of  wages, 
as  well  as  such  earnest-monies  as  have  been  paid,  ai'e  to  be  entered. 
In  this  account-book  the  seaman  must  give  a  receipt  for  each  payment. 
The  master  is  likewise  obliged  to  give  to  each  seaman  who  demands  it 
a  special  wages  book  and  to  enter  equally  therein  any  payment  made 
on  account  of  the  wages  of  the  holder. 

§  40.  If  the  number  of  the  crew  decreases  during  the  voyage  and 
is  not  made  up  again,  the  amount  of  the  wages  thus  saved  is,  unless 
otherwise  agreed,  to  be  divided  amongst  the  remaining  seamen  in  pro- 
portion to  their  respective  wages.  No  claim  to  division  exists,  however, 
if  the  decrease  of  the  crew  be  caused  by  desertion  and  the  effects  of  the 
deserted  seaman  did  not  remain  on  board. 

If  the  number  of  the  crew  during  the  voyage  be  reduced  by  more 
than  one-sixth,  the  master,  at  the  request  of  the  remainder  of  the  crew, 
is  obliged,  should  circumstances  permit,  to  make  up  the  deficiency. 

§  41.  In  all  cases  in  which  a  vessel  remains  more  than  two  years 
abroad,  and  should  no  other  ari-angement  have  been  made,  such  seamen 
as  have  been  two  years  in  the  service  are  entitled  to  an  increase  of 
wages  if  these  are  agreed  for  time. 

This  increase  is  to  be  determined  as  follows  : — 

(1)  The  ship's  boy  x-eceives  at  the  beginning  of  the  third  year  the 

wages  of  an  ordinary  seaman  as  fixed  by  the  ship's  articles 
or  the  average  amount  shown  by  them,  and  at  the  beginning 
of  the  fourth  year  the  wages  of  an  able  seaman  as  fixed  by 
the  ship's  articles. 

(2)  The  ordinary  seaman  receives  at  the  beginning  of  the  third  year 

the  wages  of  an  able  seaman  as  fixed  by  the  ship's  articles, 
and  at  the  beginning  of  the  fourth  year  one-fifth  more. 

(3)  The  remainder  of  the  crew  receive  at  the  beginning  of  the  third 

year  one-fifth  more  and  at  the  begininng  of  the  fourth  year 
a  further  one-fifth  of  the  original  amount  of  wages  stated 
in  the  ship's  articles.  In  the  case  stih  No.  2  the  ordinary 
seaman  enters  at  the  beginning  of  the  third  year  into  the 
rank  of  an  able  seaman. 
§  42.  The  d(!mands  of  the  master  and  of  all  persons  belonging  to 
llif  crow  which  arise  out  of  any  service  and  wages  agreemenfs,  and  wlio 


APPENDIX.  7! '7 

liave  been  on  board  of  a  vessel  wliich,  according  to  Articles  86G  and  8o7 
of  the  German  General  Mercantile  Law,  is  to  be  considered  as  missing, 
are  due  at  tlie  expiration  of  the  time  allowed  for  the  calculation  of  tl  e 
presumptive  loss. 

"  The  termination  of  such  service  relations  are  to  be  reckoned  from 
half  a  month  after  the  day  on  which  the  last  news  from  the  vessel  was 
received. 

The  amount  of  the  demands  has  to  Vje  handed  to  the  Seamen's 
Office  of  the  port  of  registry,  which  lias  to  arrange  the  payment  to 
those  entitled  to  receive  them. 

§  43,  The  seaman  is  entitled  to  nourishment  for  account  of  the 
vessel  from  the  time  the  service  begins.  He  is  only  allowed  to  use  the 
food  and  drink  served  out  to  him  for  his  own  requirements,  and  must 
not  dispose,  waste,  or  do  away  with  it  in  any  manner  whatever. 

§  44.  The  crew  is  entitled  to  a  protected  and  sufficiently  ventilated 
space  on  board  the  vessel  intended  solely  for  them  and  their  efi'ects,  and 
corresponding  to  their  number  and  the  size  of  the  vessel. 

If  the  seaman  in  consequence  of  a  casualty  or  from  other  reasons 
cannot  obtain  shelter  on  board  the  vessel,  other  suitable  provision  is 
to  be  provided  for  him. 

§  45.  The  minimum  of  food  and  drhik  to  be  served  out  to  the  sea- 
man per  day  (§  4.3),  the  size  and  fitting  up  of  the  space  set  apart  for  the 
crew,  as  well  as  the  minimum  of  medicines  to  be  carried,  are,  in  case 
of  doubt,  to  be  determined  by  the  law  of  the  port  of  registry. 

The  issue  of  more  particular  stipulations  belongs  to  the  Governments 
of  the  different  countries. 

§  46.  The  master  is,  in  case  of  an  unusually  long  duration  of  the 
voyage,  or  in  case  any  casualties  should  have  occurred,  entitled  to 
reduce  the  rations  or  to  make  a  change  respecting  the  choice  of  food 
and  di'ink. 

He  must  enter  in  the  log-book  when,  why,  and  in  what  way  the 
reduction  or  change  took  place. 

If  this  is  omitted,  or  if  the  arrangements  made  by  the  master  prove 
unjustifiable  and  caused  by  his  fault,  the  seaman  is  entitled  to  such  an 
allowance  as  is  equivalent  to  the  privations  suffered.  The  Seamen's 
Office  before  whom  the  discharge  takes  place  shall  decide  about  such 
demand  under  reservation  of  recourse  to  law. 

§  47.  If  an  officer  of  a  ship,  or  not  less  than  three  seamen,  complain 
before  a  Seamen's  Office  that  the  vessel  for  which  they  were  engaged  is 
unseaworthy,  or  that  the  pro\isions  which  are  on  board  for  the  wants  of 
tlie  crew  as  food  and  drink  are  insufficient  or  spoiled,  the  Seamen's 
Office  must  cause  the  vessel  or  the  provisions  to  be  examined  and  to 


708  MAIIITI.ME    LEGISLATION. 

enter  the  result  in  the  log-book.     It  must  also  take  care,  in  case  the 
complaint  is  proved  to  be  well  founded,  so  provide  the  necessary  remedy. 
§  48.  If  a   seaman  after  having  entered  the  service  falls  ill  or  is 
wounded,  the  owner  shall  defray  the  expenses  of  his  care  and  curing. 

(1)  If  the  seaman,  on  account  of  the  disease  or  the  wound,  did  not 

commence  the  voyage  up  to  the  expiration  of  three  months 
from  the  time  he  became  ill  or  was  wounded. 

(2)  If  he  enters  upon  the  voyage  and  returns  in  the  vessel  to  a  German 

port  up  to  the  ex2:)iration  of  three  months  from  the  return  of 
the  ship. 

(3)  If  he  enters  upon  the  voyage  and  returns  in  the  vessel,  but  if  such 

voyage  does  not  terminate  in  a  German  port,  then  up  to  the 
expiration  of  six  months  from  the  return  of  the  ship. 

(4)  If  he  had  to  be  left  behind  ashore  during  the  voyage  up  to  the 

expiration  of  six  months  from  the  time  that  the  vessel  has 
continued  such  voyage. 
Should  the  vessel  not  return  to  the  port  from  which  it  started,  the 
seaman  is  likewise  entitled  to  be  returned  free  of  expenses  to  that  port 
(§§  65,  66)  or,  at  the  option  of  the  master,  to  a  corresponding  compen- 
sation. 

§  49.  The  sick  or  wounded  seaman  shall  receive  his  wages — 
If  he  does  not  commence  the  voyage,  up  to  the  time  of  discontinu- 
ing his  duties 
If  he  enters  upon  the  voyage  and  returns  in  the  vessel  up  to  the 

termination  of  the  return  voyage. 
If  he  had  to  be  left  behind  ashore  during  tlie  voyage,  up  to  the  day 

on  which  he  leaves  the  vessel. 
If  the  seaman  has  been  injured  in  defence  of  the  vessel,  he  is  besides 
entitled  to  a  fair  reward,  which,  eventually,  shall  be  fixed  by  the 
judge. 
§  50.  Paragraphs  48  and  49  are  not  to  be  applied  to  seamen  whose 
decease  or  wounds  have  been  caused  by  their  own  unlawful  acts  or  who 
are  suffering  from  syphilitic  diseases. 

§  51.  Should  the  seaman  die  after  having  entered  the  service,  the 
owner  shall  pay  the  wages  (§  67)  earned  up  to  the  day  of  his  death 
and  defray  the  burial  expenses. 

If  a  seaman  is  killed  while  defending  the  vessel,  the  owner  has  to 
pay  in  addition  a  fair  reward,  which,  if  necessary,  is  to  be  fixed  by  the 
judge. 

§  52.  Documentary  evidence  must  be  produced  by  the  master, 
attested  Ijy  two  ship's  officers  or  other  credible  persons,  as  to  the  death 
of  any  seaman  occurring  after  commencement  of  the  service. 

Tlic  document  must  contain  day  and  hour  of  thedeatli,  the  Christian 


APPENDIX.  700 

and  surname,  the  place  of  birth  or  domicile,  and  the  age  of  tlie  deceased 
as  well  as  the  supposed  cause  of  death.  It  must  be  executed  by  tlie 
master  and  the  witnesses  called  in. 

As  far  as  the  property  of  the  deceased  seaman  is  on  board,  the 
master  has  to  cause  an  inventory  to  be  made  to  take  care  of  it,  and,  if 
necessary,  to  sell  it. 

The  inventory  is  to  be  made  in  tlie  presence  of  two  ship's  officers  or 
other  credible  persons. 

The  property  itself,  or  the  proceeds  realised  by  its  sale,  as  well  as  any 
wages  due,  are  to  be  given  to  the  Seamen's  Office  at  which  it  first  can  be 
done,  together  with  the  inventory  and  certificate  of  death. 

If  the  Seamen's  Office  abroad  refuses  to  take  charge  of  the  property 
from  special  reasons,  the  master  must  deliver  it  to  the  first  Seamen's 
Office  at  which  the  matter  can  best  be  arranged. 

The  rules  of  the  laws  respecting  the  keeping  of  the  civil  registers 
are  not  affijcted  by  the  regulations  of  this  first  and  third  section. 

§  53.  If  the  master  dies  during  the  voyage,  the  mate  is  bound  to 
j)roduce  a  document  as  to  the  death,  and  to  take  care  of  the  property 
left  in  accordance  with  the  above  regulations  (§  52). 

§  54.  The  seaman  is  obliged  to  remain  during  the  entire  voyage, 
including  compound  voyages,  in  the  service  up  to  the  conclusion  of 
the  return  voyage,  unless  otherwise  agreed  in  the  contract  of  his 
engagement. 

Under  return  voyage  in  the  sense  of  above  rule  must  be  understood 
the  voyage  to  the  port  from  which  the  vessel  started.  If,  however,  the 
vessel  comes  from  a  non -European  port,  or  from  a  port  in  the  Black 
Sea,  or  Sea  of  Azof,  and  began  the  voyage  at  a  German  port,  any  of 
the  voyages  named  hereafter  are  to  be  considered  as  return  voyages, 
provided  the  master,  immediately  after  arrival,  declai'es  to  the  crew 
the  voyage  as  ended  there,  viz.  :  — 

(1)  The  voyage  to  any  German  port. 

(2)  The  voyage  to  any  non-German  port  in  the  North  Sea  or  to  a 

Channel  port  or  port  in  Great  Britain. 

(3)  If  the  vessel  commenced  her  voyage  from  the  Baltic,  the  voyage 

to  a  non-German  port  of  the  Baltic  or  to  a  port  in  the  Sound 

or  Cattegat. 

If  the   return  voyage    does  not  end  in  the   port  from  which  the 

vessel  originally  sailed,  the  seaman  is  entitled  to  a  free  return -passage 

(§§  65,  6G)  to  that  port  and  to  his  wages  during  the  voyage,  or,  at  his 

option,  to  a  corresponding  compensation. 

§  55.  After  the  voyage  is  ended,  the  seaman  cannot  demand  his 
dismissal  before  the  cargo  is  discharged,  the  Aessel  cleaned  and  properly 


800  MAlJlTlMi:    Li;(iISI..\T[()X. 

secured  in  port,  or  at  any  other  ijlace,  and,  if  lecjuired,  the  protest 

extended. 

S  56.  The  engagement  terminates  when  tlie  owner  loses  tlie  vessel 
through  an  unforeseen  accident,  more  especially — 

If  it  is  lost. 

If  it  has  been  condemned  as  incapable  or  unworthy  of  repair 
(Art.  414  of  the  German  General  Mercantile  Law)  and  if,  in 
the  latter  case,  it  is,  without  delay,  sold  by  public  auction. 

If  it  is  captured  by  pirates. 

If  it  is  seized  or  detained  and  condemned  as  good  prize. 

In  such  a  case,  the  seaman  shall  not  only  receive  the  wages  he  may 
have  earned  (§  67),  but  also  a  free  return-passage  to  the  port  where  the 
vessel  sailed  from,  or,  at  the  master's  option,  a  corresponding  compen- 
sation. 

§  57.  The  master  may,  irrespective  of  the  cases  provided  for  in  the 
agreement,  discharge  the  seaman  before  the  expiration  of  his  time  of 
service — 

(1)  As  long  as  the  voyage  has  not  yet  been  commenced,  if  the  seaman 

is  incapable  for  the  service  for  which  he  has  been  engaged. 

(2)  If  the  seaman  commits  a  gross  offence  against  his  duty,  more 

especially  if  he  is  guilty  of  repeated  disobedience  and  con- 
tinued refractory  conduct  or  smuggling. 

(3)  If  the  seaman  is  guilty  of  theft,  fraud,  faithlessness,  embezzle- 

ment,  concealment  of  stolen   goods^  forgery,  or  any    action 
punishable,  under  the  penal  law  by  penal  servitude. 

(4)  If  the  seaman  is  infected  with  syphilitic  disease,  or  if,  by  doing 

an  unlawful  act,  he  lias  become  invalided  or  wounded,  and 
tliereby  incapacitated  to  work. 
(."»)  If  the  voyage  for  wliicli  tlie  seaman  lias  been  engaged  cannot 
be  commenced  or  continued  on  account  of  war,  embargo  or 
blockade,  or  on  account  of  the  prohibition  of  exportation  or 
importation,  or  on  account  of  any  other  casualty  happening 
to  ship  and  cargo. 
The  dismissal  and  reason  thereof  must  be  announced  to  the  seaman, 
and,  in  cases  of  Nos.  2,  3,  4,  be  recorded  on  the  ship's  log. 

§  58.  In  the  cases  stated  under  Nos.  1-4  of  §  57,  the  seaman  is 
not  entitled  to  more  than  the  wages  earned  ;  but  in  case  of  No.  5  he 
is  when  tlie  discharge  occurs  after  the  commencement  of  the  voyage, 
not  only  entitled  to  the  wages  earned,  but  likewise  to  a  free  retiirn 
passage  (§§  65,  66)  to  the  port  from  which  the  vessel  sailed,  or,  at  the 
option  of  the  master,  to  a  corresponding  compensation. 

§  59.  The  seatii.-in  who  is  engaged  for  a   voyage  and  may,  for  otiicv 


APPENDIX. 


801 


reasons  than  those  stated  iu  §  57,  be  discharged  before  tlie  termination 
of  the  contract,  shall,  if  such  dismissal  takes  place  before  the  commence- 
ment of  the  voyage,  retain  as  a  compensation  tlie  earnest-money  and 
advances  received  in  so  far  as  they  do  not  exceed  the  usual  amount. 

When  no  earnest-money  or  advances  have  been  paid,  lie  is  entitled 
to  one  month's  wages  as  a  compensation. 

If  the  dismissal  occurs  after  the  commencement  of  the  voyage  he  is 
entitled  to  a  free  return-passage  (§§  65,  66)  to  the  port  from  which  the 
vessel  sailed,  or,  at  the  master's  option,  to  a  corresponding  compensation. 
Besides  the  wages  so  earned  he  shall  receive  two  months'  wages  if  he 
be  dismissed  in  a  German  port,  or  four  months'  wagos  if  he  be  dismissed 
in  a  non-European  port,  but  he  is  never  to  receive  more  than  he  would 
have  been  paid  in  case  he  had  been  dismissed  at  the  termination  of  the 
voyage. 

§  60.  Should,  in  conformity  with  the  stipulation  at  the  close  of  the 
preceding  paragraph,  the  seaman  after  termination  of  the  voyage  be 
dismissed  in  a  German  port,  then,  in  order  to  ascertain  the  wages  due 
to  him,  besides  those  previously  earned,  the  duration  of  the  voyage  of  a 
sailina  vessel  is  to  be  reckoned  as  follows  : — 


From  Ports 

To  Ports 

Of  the 
North  Sea 

Of  the 
Baltic 

(1)  Of  the  North  Sea  up  to  61°  N.  L.  and  of  the 

English  Channel,  as 

(2)  Of  the  Baltic  and  neighbouring  waters,  as 

(3)  In  Europe,  outside  of  the  Channel  and  up  to 

the    Straits    of    Gibraltar,    inclusive   of   the 
Azores,  as  well  as  of  the  North  Sea  beyond 
61°  N.  L.  and  outside  of  the  North  Sea  up  to 
the  North  Cape  inclusive,  as  . 

(4)  Of  the  Mediterranean,  Black  Sea,  and  Sea  of 

Azof,  as 

(5)  In  Europe,  eastwards  of  the  North  Cape,  as 

(6)  Of  the  East  Coast  of  America,  from  Quebec  to 

Rio  de  Janeiro  inclusive,  as    . 

(7)  Southwards  from  Eio  de  Janeiro  to  Cape  Horn, 

inclusive,  as    ......         . 

(8)  Of  the  West  Coast  of  America,  from  Cape  Horn 

to  Panama,  inclusive,  as          .... 

(9)  Of  the  West  Coast  of  Africa,  north  of  the  Equator, 

inclusive  of  the  Canary  and  Cape  Verd  Is- 
lands, as          ....... 

(10)  Southwards  from  the  Equator  up  to  Cape  of 

Good  Hope,  inclusive,  as       ...         . 

(11)  On  the  other  side  of  the  Cape  of  Good  Hoi^e, 

this  side   of  Cape  Cormorin,  inclusive,  the 
Red  Sea  and  Persian  Gulf     .... 

(12)  Not  included  in  the  above        .... 

Months 

1 
1* 

1| 

2 
2 

2 

n 

2 

n 

3.V 
4" 

Mouths 

1| 
1 

2 

2 
2 

2.1 

3 

4 

2| 

n 

4 
4 

6  F 


802  MARITIME   LEGISLATION. 

§  6L  The  seaman  is  entitled  to  demand  his  discharge— 

(1)  If  the  master  is  guilty  of  a  gross  violation  of  his  duties  towards 

him  more  especially  of  ill-treatment  and  of  withholding  food 
and  drink  without  sufficient  cause  ; 

(2)  If  the  vessel  changes  its  flag  ; 

(3)  If,  after  the  termination  of  the  outward  voyage,  an  intermediate 

voyage  has  been  decided  upon,  or  if  after  termination  of  an 
intermediate  voyage  in  case,  two  or  three  years  having  elapsed 
since  the  original  engagement,  the  vessel  is  in  a  European 
(§  70)  or  in  a  non-European  port. 

Change  of  owner  or  master  does  not  entitle  the  seaman  to  demand 
his  discharge. 

§  62.  In  case  of  §  61,  suh  3,  the  dismissal  cannot  be  demanded — 

(1)  If  the  seaman  has  engaged  himself  for  a  longer  time  than  therein 

stated  ;  but  an  engagement  for  an  unlimited  period,  or  with 
the  general  condition  that  after  the  termination  of  the  out- 
ward voyage  the  service  is  to  continue  for  all  voyages  that 
might  thereafter  be  decided  upon,  shall  not  be  considered 
as  an  engagement  for  such  time  ; 

(2)  If  the  return  voyage  lias  been  ordered. 

§  63.  In  cases  sub  1  and  2  of  §  61  the  seaman  has  the  same  claims 
as  in  the  case  contemplated  by  §  59  ;  in  the  case  suh  3  he  is  not  entitled 
to  receive  more  than  the  wages  earned  (§  67). 

§  64.  The  seaman,  except  the  vessel  changes  its  flag,  shall  not  without 
consent  of  a  Seamen's  Office  (§  105)  quit  the  service  in  a  foreign  country. 

§  65.  Should,  according  to  this  law,  a  claim  for  a  free  I'eturn-passage 
be  established,  it  likewise  includes  maintenance  during  the  voyage. 

§  66.  The  claim  for  a  free  return-passage  is  satisfied  if  the  seaman, 
who  is  able  to  work,  should,  with  the  consent  of  the  Seamen's  Office,  be 
provided  with  such  employment  as  is  equivalent  to  his  former  position 
and  with  corresponding  wages,  on  board  of  a  German  merchant  vessel, 
which  goes  to  the  port  from  which  his  vessel  originally  sailed,  or  to  a 
port  near  thereto  ;  in  the  latter  case  of  course  under  payment  of  the 
corresponding  allowance  for  the  further  fi'ee  return-passage  (§  65)  to 
the  port  of  original  departure. 

If  the  seaman  is  not  a  German,  a  vessel  of  his  own  nationality  will 
be  considered  equivalent  to  a  German  vessel. 

§  67.  In  the  cases  of  §§  36,  51,  56,  58,  59  ct  63,  the  wages  earned — 
if  they  have  originally  been  fixed  at  a  lump  sum  for  the  whole  voyage 
shall  be  calculated  in  proportion  to  the  services  rendered  and  to  the 
part  of  the  voyage  actually  performed,  taking,  of  course,  into  considera- 
tion the  lump  sum  originally  fixed. 


APPENDIX.  803 

In  order  to  ascei'tain  the  wages  for  a  single  month,  as  referred  to  in 
§§  59  and  GO,  tlie  average  duration  of  the  voyage,  including  the  time 
for  loading  and  discharging — of  course  considering  the  general  con- 
ration  of  the  vessel — is  to  be  taken  as  Imsis  for  such  compensation. 

§  68.  The  owner  is  answerable  for  the  claims  of  the  master,  as  well 
as  of  the  other  persons  belonging  to  the  crew,  which  arise  out  of  all 
conti'acts  respecting  their  services  and  wages,  not  only  to  the  extent  of 
ship  and  freiglit,  but  personally. 

This  provision  takes  the  place  of  Art.  453  of  the  German  General 
Mercantile  Law. 

§  69.  The  share  in  the  freight  or  in  tlie  profits  which  may  have 
been  accorded  to  the  seaman  as  reward  shall  not  be  considered  as  wages 
in  the  sense  of  this  law. 

§  70.  In  the  cases  of  §§  59  and  61,  the  non-European  ports  of  the 
Mediteri'anean,  the  Black  Sea  and  the  Sea  of  Azof  are  to  be  considered 
as  equal  to  European  ports. 

§  71.  The  master  shall  not,  without  the  consent  of  the  Seamen's 
Office,  leave  a  seaman  behind  in  a  foreign  country.  Should  it  be  feared 
that,  in  case  of  such  leaving  behind,  a  seaman  may  become  destitute, 
the  granting  of  the  necessary  permission  may  be  made  dependent 
upon  the  master  providing  for  a  term  a  proper  secui-ity  against  such  an 
event  up  to  three  months. 

The  provisions  of  §  103  are  not  affected  hereby. 


FOURTH  SECTION. 
Disciplinary  Regulations. 


§  72.  The  seaman  is  subject  to  the  disciplinary  power  of  the 
master. 

The  same  begins  with  the  commencement  of  the  service  and  expires 
at  its  termination. 

§  73.  The  seaman  is  obliged  always  to  be  sober  and  to  observe 
towards  everybody  a  proper  and  peaceable  behaviour. 

He  is  bound  to  treat  the  master  and  his  other  superiors  with 
respect  and  to  obey  unhesitatingly  their  several  orders. 

§  74.  The  seaman  must,  at  the  master's  request,  communicate  truly 
and  completely  to  him  what  he  knows  respecting  all  matters  relating  to 
the  ship's  service. 

§  75.  The  seaman  shall  not  bring  any  goods  on  board  without  the 
master's  permission  ;  for  any  goods  shipped  by  him  contrary   to  this 


804  MARITIME   LEGISLATION. 

prohibition,  whether  for  himself  or  for  others,  he  sliall  pay  the  highest 
freio-ht  charo-ed  at  the  loading-port  for  such  voyages  and  goods  at  the 
time  of  shipment,  without  prejudice  to  any  further  claims  for  higher 
damages  that  may  be  proved. 

The  master  is  likewise  authorised  to  throw  the  goods  overboard 
should  they  be  a  danger  to  the  ship  or  the  cargo. 

§  76.  The  provisions  of  §  75  also  apply  if  the  seaman,  without  the 
master's  permission,  brings  or  causes  to  be  brought  on  board  brandy  or 
other  spirituous  liquors  or  more  tobacco  than  he  requires  for  his  own 
use  on  the  intended  voyage.  Such  spirituous  liquors  and  tobacco  as  are 
brought  on  board  in  contravention  of  this  provision  are  forfeited  to  the 
ship. 

§  77.  The  measures  adopted  by  the  master  in  conformity  with  the 
provisions  of  §§  75  and  76  have  to  be  entered  into  the  log-book  as  soon 
as  this  can  be  done. 

§  78.  If  the  ship  is  lying  in  port,  the  master  is  authorised,  in  order 
to  prevent  desertions,  to  take  charge  of  the  effects  of  the  seamen  until 
the  departure  of  the  vessel. 

§  79.  The  master  is  authorised  to  take  all  the  requisite  measures 
to  uphold  order  and  to  secure  the  regularity  of  the  service.  For  this 
purpose  he  may  inflict  as  punishment  the  customary  extra  labour  or 
nioderately  reduce  the  food  ;  the  latter,  however,  at  the  most  for  three 
days.  Fines,  corporal  punishment,  or  imprisonment  he  must  not  inflict 
as  correction. 

The  master  is  authorised  to  use  every  means  necessary  to  enforce 
obedience  to  his  orders  in  cases  of  opposition  or  continued  disobedience. 
He  may  adopt  the  proper  measures  of  safety  against  the  parties  con- 
cerned, and,  if  necessary,  put  them  in  irons  during  the  voyage. 

Every  seaman,  if  required,  is  obliged  to  render  assistance  to  the 
master  for  the  purpose  of  upholding  order  as  well  as  for  prevention  or 
suppression  of  any  refractoriness. 

Abroad  the  master  must  apply,  in  pressing  cases,  to  the  commanders 
of  the  available  men-of-war  of  the  Empire  for  assistance  in  order  to 
uphold  the  necessary  discipline. 

§  80.  Every  measure  taken  by  the  master  in  accordance  with  the 
provisions  of  §  79  has,  as  soon  as  this  can  be  done,  to  be  entered  in  the 
ship's  log,  stating  likewise  the  cause  thereof. 


APPENDIX.  805 

FIFTH  SECTION. 

Punishments. 

§  81.  A  seaman  wlio,  after  signing  the  ship's  articles,  absents  him- 
self in  order  to  avoid  entering  on  the  service,  is  lialjle  to  a  fine  up  to 
twenty  thalers.     But  proceedings  will  only  be  taken  if  required. 

If  a  seaman  deserts  or  absents  himself  in  order  to  avoid  continua- 
tion of  the  service,  he  is  liable  to  a  fine  up  to  one  hundred  thalers,  or 
impi-isomiient  up  to  three  months.  But  proceedings  will  only  be  taken 
if  required. 

A  seaman  who  deserts  or  secretes  himself  with  the  advance  received 
in  order  to  avoid  the  service  engaged  for,  is  liable  to  imprisonment  up 
to  one  year,  as  threatened  by  §  298  of  the  penal  code. 

§  82.  In  the  case  of  the  two  last  provisions  of  §  81,  the  seaman 
loses  all  claim  to  the  wages  earned  unless  he,  for  the  purpose  of  con- 
tinuing the  service,  before  the  departure  of  the  vessel,  either  voluntarily 
I'etunis  or  is  brought  back  by  force.  The  wages,  and  in  so  far  as  they 
are  insufficient,  his  effects,  may  be  taken  to  cover  the  demands  of  the 
owner  arising  out  of  the  wages  and  hire  agreement;  and,  in  so  far  as 
the  wages  are  not  required  for  these  purposes,  they  will  be  treated  in 
accordance  with  §  107. 

§  83.  Has  the  seaman  withdrawn  from  the  service  in  one  of  the  cases 
of  §  61,  suh  1  and  3,  without  permission  of  the  Seamen's  Office  (§  64), 
he  is  liable  to  a  fine  up  to  the  amount  of  one  month's  wages. 

§  84,  A  seaman  who  is  guilty  of  gross  violation  of  his  duties  is  liable 
to  a  fine  up  to  the  amount  of  one  month's  wages. 

As  violation  of  the  duties  in  tliis  sense  are  to  be  specially  con- 
sidered— 

Carelessness  while  on  watch  ; 

Disobedience  against  an  order  of  a  superior  concerning  the  service  ; 

Improper  behaviour  towards  superiors,  towards  other  members  of 
the  crew,  or  towards  passengers  ; 

Leaving  the  vessel  without  permission,  or  overstaying  leave  ; 

Taking  one's  own  or  strange  property  from  shipboard,  or  bringing 
goods  or  other  objects  on  board  without  permission; 

Allowing  strangers  on  board,  or  any  craft  to  come  alongside  the 
vessel; 

Drunkenness  on  duty; 

Waste,  unauthorised  disposal  or  putting  away  of  provisions. 

As  far  as  regards  ship's  officers,  the  fine  may  be  increased  up  to  the 
amount  of  two  months'  wages. 


806  MARITIME   LEGISLATION. 

If  the  wa^es  are  not  agreed  to  be  paid  by  time,  the  fine  is  fixed 
at  an  amount  wliich,  according  to  the  opinion  of  the  Seamen's  Office,  is 
equivalent  to  the  monthly  hire.  But  proceedings  will  only  be  taken  if 
required.     Such  requisition  is  valid  if  made  before  the  discharge  of  the 

person. 

§  85.  The  master,  as  soon  as  it  can  be  done,  has  to  enter  every 
violation  of  duty  (§  84)  in  the  ship's  log-book  with  an  exact  statement 
of  the  facts,  and,  if  practicable,  to  inform  the  seaman  of  the  contents 
of  such  entry  with  express  reference  to  the  punishment  threatened  by 
§  84.  Should  such  information  not  have  been  practicable,  the  reasons 
thereof  are  to  be  recorded  in  the  log-book.  If  no  entry  has  been  made, 
no  proceedings  can  be  taken. 

§  86.  A  seaman  who  refuses  lawful  obedience  to  the  repeated  com- 
mands of  the  master  or  another  superior  is  liable  to  imprisonment  up 
to  three  months,  or  to  a  fine  up  to  one  hundred  thalers. 

§  87.  If  two  or  more  persons  belonging  to  the  ship's  crew  refuse 
lawful  obedience  to  the  master  or  another  superior,  the  parties  con- 
cerned are  liable  to  imprisonment  up  to  one  year.  The  ringleader  is 
liable  to  be  punished  with  imprisonment  up  to  three  years. 

If  there  are  extenuating  circumstances,  a  fine  up  to  two  hundred 
thalers  may  be  adjudged. 

The  ringleader  to  be  punished  with  imprisonment  up  to  two  years. 

§  88.  A  seaman  who  incites  two  or  more  persons  belonging  to  the 
ship's  crew  to  commit  an  action  which  is  punisliable  according  to  §§  87 
and  91,  is  Kable  to  the  punishment  as  a  ringleader  if  the  incitement 
causes  the  punisliable  action  or  a  punishable  attempt  thereof. 

If  the  incitement  was  Avithout  result,  tlien  in  case  of  §  87  a  fine  up 
to  one  liundred  thalers,  in  case  of  §  91  a  fine  up  to  two  hundred  thalers, 
or  imprisonment  up  to  one  year,  is  to  be  inflicted. 

§  89.  A  seaman  wlio  undertakes  to  necessitate  the  master  or 
another  superior  by  force  or  threat  of  force,  or  by  refusal  of  any  duty, 
to  take  or  not  to  take  any  action  whicli  he  was  in  duty  bound  to  per- 
form, is  liable  to  imprisonment  up  to  two  years.  If  there  are  extenu- 
ating circumstances,  a  fine  up  to  two  hundred  thalers  may  be  adjudged. 

§  90.  The  same  terms  of  punishment  (§  89)  are  to  be  applied  to  the 
.seaman  wlio  resists  tlie  master  or  another  superior  by  force  or  by  threat 
of  force  or  who  assaults  the  master  or  another  superior. 

§  91.  Sliould  one  of  the  acts  designated  by  §§  89,  90,  after  precon- 
certion,  be  mutually  committed  by  several  seamen,  the  punishment 
may  be  increased  up  to  the  double  amount  of  the  threatened  maximum. 

The  ringleader,  as  well  as  those  who  assault  the  master  or  another 
superior,  are  liable  to  penal  servitude  up  to  five  years  or  to  imprison- 


APPENDIX.  807 

nient  of  equal  duration  (even  police  supervision  may  be  added  if 
considered  desirable).  Should  there  be  extenuating  circumstances,  an 
imprisonment  of  not  less  than  three  months'  is  to  be  adjudged. 

§  92.  A  seaman  wlio  refuses  to  oljey  sucli  commands  of  the  master 
or  anotlier  superior  whicli  are  i-equired  for  the  prevention  or  suppres- 
sion of  the  actions  designated  by  §§  89,  90,  is  liable  to  punishment  as 
an  accessory. 

§  93.  A  seaman  is  liable  to  a  fine  up  to  twenty  thalers,  or  impri- 
sonment up  to  fourteen  days,  wlio — 

(1)  In  order  to  deceive  a  Seamen's  Office  in  any  proceeding  as  to 

the  granting  of  a  sea  voyage  book,  or  any  entry  therein,  or 
respecting  an  engagement,  distoi'ts  or  suppresses  true  facts 
or  insinuates  false  ones  ; 

(2)  Omits  to  be  present  at  the  engagement  in  accordance  with  §  10  ; 

(3)  Or,  should  he  be  prevented  from  entering  the  service,  does  not 

present  the  necessary  proofs  thereof  to  the  Seamen's  Office  in 
accordance  with  §  15. 

The  contents  of  §  271  of  the  penal  code  are  not  affected  by  the 
provision  as  above,  sub  1. 

§  94.  Whoever  makes  a  complaint  before  a  Seamen's  Office  as  to  the 
unseaworthiness  of  the  vessel,  or  the  deficiency  of  provisions,  although 
he  is  perfectly  aware  of  the  untruth  of  his  assertions,  and  causes  thereby 
a  survey  to  be  held,  is  liable  to  imprisonment  up  to  three  months. 

Whoever  makes  a  complaint  before  a  Seamen's  Office  as  to  the 
unseaworthiness  of  the  vessel,  or  the  deficiency  of  provisions,  although 
he  might  with  a  little  care  have  ascertained  the  untruth  of  his  asser- 
tions, and  causes  thereby  a  survey  to  be  held,  is  liable  to  a  fine  up  to 
one  hundred  thalers. 

§  95.  The  infliction  of  the  punishment  threatened  by  this  section, 
or  by  that  of  any  other  legal  penal  code,  is  not  excluded  in  consequence 
of  the  guilty  party  having  already  been  subjected  to  disciplinary 
punishment  on  account  of  the  deed  of  which  he  is  accused.  A  disci- 
plinary punishment  suffered  may,  however,  be  taken  into  consideration 
in  the  decision  of  the  Seamen's  Office  (§  101),  as  well  as  in  the  judgment 
of  any  legal  tribunal  when  the  punishment  is  apportioned. 

§  96.  The  master  or  other  superior  who  exceeds  his  disciplinary 
authority  towards  a  seaman  is  liable  to  a  fine  up  to  three  hundred 
thalers,  or  imprisonment  up  to  one  year. 

§  97.  The  master  who  intentionally  neglects  to  fulfil  his  obligations 
to  pro^dsion  tlie  vessel  properly,  is  liable  to  imprisonment ;  and  he 
may,  in  addition,  be  adjudged  to  a  fine  of  five  hundred  thalers,  as  well 
as  to  the  loss  of  liis  civil  ri<rhts. 


808  MARITIME   LEGISLATION. 

If  the  master  has  carelessly  omitted  to  fulfil  his  obligations,  he  is, 
should  the  crew  in  consequence  thereof  not  have  been  able  to  receive 
proper  food,  liable  to  a  fine  up  to  two  hundred  thalers,  or  imprisonment 
up  to  one  year. 

§  98.  A  master  who,  without  the  consent  of  the  Seamen's  Office 
(§  71),  leaves  a  seaman  abroad,  is  liable  to  a  fine  up  to  one  hundred 
thalers,  or  to  imprisonment  up  to  three  months. 

§  99.  A  master  is  liable  to  a  fine  up  to  fifty  thalers,  or  to  imprison- 
ment, who — 

(1)  Does  not  comply  with  any  of  his  obligations  respecting  the 

engagement  (shipping  and  discharging)  of  the  crew  (§  10)  ; 

(2)  In  order  to  deceive  a  Seamen's  Office  respecting  the  engagement 

(shipping,  discharging)  of  the  crew,  or  respecting  an  entry 
into  the  sea  voyage  book,  distorts  or  suppresses  true  facts  or 
insinuates  false  ones  ; 

(3)  Does  not  obtain  and  produce  such  evidence  as  is  required  in 

cases  of  death,  or  neglects  his  duty  to  attend  to  the  property 
left  (§§  52,  53) ; 

(4)  Does  not  cause  such  entries  in  the  ship's  log-book  to  be  made  as 

are  ordered  by  §§  77  and  80  ; 

(5)  Does  not,  in  case  of  misdemeanour  or  crimes,  fulfil  his  duties  in 

accordance  with  §§  102  and  103  ; 
(^6)  Refuses  to  the  seaman,  without  reasonable  cause,  the  oppor- 
tunity to  obtain  the  decision  of  the  Seamen's  Office  (§§  105, 
106); 

(7)  Keeps  a  seaman  without  food  or  drink  without  proper  cause. 

(8)  Does  not  take  care  that  a  copy  of  this  law,  as  well  as  of  the 
rules  respecting  the  food  and  lodging  of  the  crew,  is  accessible  in  their 
respective  space  (§  108).  §  271  of  the  penal  code  is  not  afiected  by 
the  regulation  sub  2. 

§  100.  The  designations  of  §§  81-91  apply  likewise  if  the  punish- 
able actions  have  been  committed  beyond  the  limits  of  the  Confederation. 

The  period  of  limitation  of  the  prosecution  does  not  commence,  in 
this  case,  before  the  day  on  which  the  vessel,  to  which  the  wrong- 
doer at  the  time  belonged,  first  reaches  a  Seamen's  Office. 

§  101.  In  the  cases  of  §§  81,  art.  I.,  84,  93,  99,  the  investigation  is 
made,  and  decision  given,  by  the  Seamen's  Office.  It  has  summarily  to 
examine  the  accused  and  to  ascertain  the  facts.  Witnesses  are  not  to 
be  sworn.  At  the  close  of  the  examination,  a  decision  supported  by 
reasons  has  to  be  given,  of  which  the  accused  is  to  be  informed,  verbally 
should  he  be  present,  but  by  a  written  communication  should  he  be 
absent. 


APPENDIX.  809 

Should  a  punishment  have  been  decreed,  the  duration  of  the  im- 
prisonment has  to  be  fixed  in  case  the  accused  is  unable  to  pay  any 
fine. 

The  accused  may  appeal  against  the  decision  within  ten  days  of 
the  publication  or  the  receipt  thereof. 

The  notice  of  appeal  has  to  be  lodged  with  the  Seamen's  Office  in 
writing. 

If  the  Seamen's  Office  is  abroad,  the  further  proceedings  have  to  be 
taken  before  tliat  court  in  whose  district  the  port  of  registry  is  situated, 
and  in  default  of  sucli,  of  that  German  port  which  the  vessel  first 
reaches  after  the  conviction. 

The  decision  of  the  Seamen's  Office,  with  respect  to  the  collection 
of  the  fine,  is  provisionally  to  be  executed. 

§  102.  Should  a  seaman  commit  a  misdemeanour  or  a  crime  during 
the  time  the  vessel  is  at  sea  or  abroad,  the  master  must,  in  the  presence 
of  ship's  officers  or  other  trustworthy  persons,  take  a  record  of  every- 
thing which  could  be  used  as  evidence  of  the  deed,  and  have  an  in- 
fluence on  the  punishment.  More  especially  has  the  nature  of  the 
wounds  to  be  correctly  described  in  cases  of  murder  or  dangerous  bodily 
injury,  and  likewise  has  to  be  stated  how  long  the  injured  person  lived, 
whether  and  what  remedies  were  applied,  and  what  nourishment  he 
took. 

§  103.  The  master  is  authorised  to  search  at  any  time  the  effects 
of  the  crew  who  are  suspected  of  any  punishable  deed.  The  master  is 
further  authorised  to  arrest  the  seaman  guilty  of  any  act  which  is  sub- 
ject to  heavy  punishment  (§  57,  sub  3).  He  is  obliged  to  do  so  if 
there  is  any  fear  of  escape. 

The  accused  has  to  be  surrendered,  together  with  all  the  proceedings 
recorded,  to  that  Seamen's  Office  where  it  can  first  be  done.  Should 
for  special  reasons  a  Seamen's  Office  abroad  decline  to  take  action,  the 
master  must  cause  the  surrender  to  that  Seamen's  Office  where  it  other- 
wise can  first  be  done.  If  in  urgent  cases  a  Seamen's  Office  cannot  be 
timely  reached,  the  master  is  authorised  to  surrender  the  accused  to 
foreign  authority  for  delivery  to  the  competent  authority  of  the  port  of 
registry.  Notice  of  this  has  to  be  given  to  the  first  Seamen's  Office 
where  it  can  be  conveniently  done. 


SIO  MAiilTIME    LEGISLATFOX. 

SIXTH   SECTION. 

General  C onditions. 

§  104.  Every  Seamen's  Office  is  bound  to  attempt  an  amicable 
settlement  of  all  such  disputes  as  have  arisen  between  the  master 
and  the  seaman  and  are  brought  to  its  notice.  The  Seamen's  Office 
before  which  the  discharge  of  a  seaman  takes  place  is  more  especially 
obliged  to  make  such  an  attempt  at  amicable  adjustment. 

§  10-5.  The  seaman  shall  not  sue  the  master  before  a  foreign 
tribunal.  If  he  acts  contrary  to  this  provision  he  shall  not  only  answer 
for  the  loss  occasioned  thereby,  but  he  sliall  also  forfeit  the  wages 
earned  up  to  tliat  time. 

In  cases  of  need  he  may  apply  to  the  Seamen's  Office  for  a  provisional 
decision.  The  opportunity  for  this  is  not  without  pressing  reasons  to 
be  denied  by  the  master. 

Each  party  has  provisionally  to  submit  to  this  decision  of  the  Sea- 
men's Office  without  prejudice  to  the  right  of  enforcing  their  respective 
claims  after  the  termination  of  the  voyage  before  the  competent 
authority. 

In  case  of  a  forced  sale  of  the  vessel,  the  pro^^sions  of  the  first 
article  respecting  the  enforcement  of  the  demands  of  the  seaman  arising 
out  of  the  hire  or  wages  agreement  do  not  apply. 

§  106.  At  home  any  disputes  which  arise  after  the  engagement 
between  the  master  and  the  seaman  as  to  the  commencement  or  con- 
tinuation of  the  service  have  to  be  adjudicated  upon  by  the  Seamen's 
Office  with  the  reservation  of  the  right  of  recourse  to  law.  The  decision 
of  the  Seamen's  Office  is  to  be  executed  provisionally. 

§  107.  The  fines  which  are  fixed  or  adjudged,  according  to  the  pro- 
visions of  the  fifth  section,  go  to  the  Seamen's  Fund,  and,  in  the  absence 
of  one,  to  the  poor-box  of  the  port  of  registry  of  the  vessel,  to  wliich 
the  accused  at  the  time  of  committing  the  punishable  action  belonged, 
in  case  by  territorial  legislation  such  fines  have  not  been  decreed  for 
other  similar  objects. 

§  108.  A  copy  of  this  law,  as  well  as  of  the  rules  respecting  food 
and  lodging  of  the  crew  (§  45),  is  to  be  at  any  time  accessible  in  the 
crew's  space,  for  inspection  by  the  seamen. 

§  109.  The  application  of  §§  5  to  23  and  of  §§  48  to  52  to  smaller 
vessels  (coasters  &lc.)  may,  by  decree  of  the  territorial  governments,  be 
excluded. 

§  1 10.  This  law  enters  into  force  on  March  1,  1873.     On  the  same 


APPENDIX.  811 

day  the  fourtli  part  of  the  fiftli  hook  of  tlie  General  German  Mercantile 
Law  is  to  be  considered  null  and  void. 

§  111.  Should  reference  have  been  made  in  other  laws  to  provisions 
which  are  cancelled  by  this  law,  the  corresponding  provisions  of  the 
latter  take  the  place  of  the  first. 

Done  at  Berlin,  Dec.  27,  1872. 


Signed    |j,^.^ 


RST  V.  Bismarck. 


11. 

LAW  RESPECTING  THE  OBLIGATION  OF  GEBMAN  MER- 
CHANT VESSELS  TO  TAKE  HOME  DISTRESSED  SEAMEN 
OF  DECEMBER  27,  1872. 

We,  William,  by  the  Grace  of  God,  German  Emperor,  King  of 
Prussia,  &c.  &c.,  order  in  the  name  of  the  German  Empire,  with  the 
consent  of  the  Confederate  Council  and  of  the  Parliament,  as  follows: — 

§  1.  Every  German  merchant  vessel  which  is  bound  from  a  non- 
German  port  to  a  German  port  or  to  a  port  in  the  Channel  of  Great 
Britain,  the  Sound,  or  of  the  Cattegat,  or  to  a  non-German  port  in  the 
North  Sea  or  the  Baltic,  is,  at  the  written  request  of  the  Seamen's 
Office,  obliged  to  take  against  compensation  (§  5),  to  her  port  of  desti- 
nation, any  German  seamen,  who  find  themselves  abroad  in  a  condition 
of  distress,  for  the  purpose  of  being  finally  forwarded  to  Germany. 

With  respect  to  foreign  seamen  who,  immediately  after  having 
taken  service  on  board  of  a  German  merchant  vessel,  find  themselves 
out  of  Germany  in  a  condition  of  distress,  a  similar  obligation  devolves 
upon  German  merchant  vessels  which  are  bound  to  the  native  country 
of  such  foreign  sailors.  The  master  may,  by  the  Seamen's  Office,  be 
forced  to  fulfil  such  obligations. 

§  2.  If  several  vessels  off'er  an  opportunity  for  passage,  the  seamen 
to  be  so  sent  home  are  to  be  distributed  by  the  Seamen's  Office  on  board 
of  the  several  vessels  according  to  their  size  and  the  number  of  their 
respective  crews. 

§  3.  The  passage  can  be  refused — 

(1)  If  and  in  so  far  as  there  is  no  suitable  room  on  board  for  those 

to  be  taken; 

(2)  If  the  seaman  who   is  to  be  taken   is  ill  in  bed,  or  suffering 


812  MARITIME   LEGISLATION. 

from  syphilitic  or  such  other  disease  as  is  dangerous  to  the 
health  or  safety  of  the  crew,  or  who  is  to  be  sent  home  on 
account  of  a  misdemeanour  or  crime; 
■(3)  If  and  in  so  far  as  the  number  of  those  to  be  taken  is  in  excess 

of  one-fourth  of  the  crew; 
(4)  If  the  passage  is  not  demanded  at  least  two  days  before  the  time 

the  vessel  is  ready  to  sail. 
The  decision  as  to  the  cause  of  the  refusal  rests  with  the  Seamen's 
Office. 

§  4.  During  the  passage  the  seaman  taken  on  board  receives  food 
and  lodging  for  account  of  the  ship.  He  is  subject  to  the  disciplinary 
authority  of  the  master. 

§  5,  In  default  of  an  agreement  as  to  a  lower  rate,  the  compensation 
(§1)  amounts  for  each  day  on  board — 

(1)  For  a  master,  mate,  surgeon,   engineer,   assistant  engineer  or 

paymaster,  to  one  thaler  on  board  of  sailing  vessels  and  to 
one-and-a-half  thaler  on  board  of  steamers. 

(2)  For  every  other  seaman,    to    half   a   thaler   on    board  sailing 

vessels  and  two-thirds  of  a  thaler  on  board  steamers. 

§  6.  The  payment  of  the  compensation  is,  at  the  port  of  destination, 
made  by  the  Seamen's  Office  against  delivery  of  the  written  request  for 
the  passage  (§  1). 

§  7.  The  person  brought  home  is  answerable  for  the  expenses  caused 
by  the  passage. 

The  directions  which  bind  the  owner  or  other  persons  to  the  repay- 
ment of  such  expenses  are  not  affected  by  this  law. 

§  8.  Whoever  avoids  the  fulfilment  of  an  obligation  due  according 
to  §  1  is  liable  to  a  fine  up  to  fifty  thalers,  or  to  imprisonment.  The 
provisions  contained  in  §  101  of  the  Regulations  for  Seamen  apply 
likewise  for  the  adjudication  of  the  punishment  and  for  all  further 
proceedings  as  herein  mentioned. 

§  9.  This  law  enters  into  force  on  March  1,  1873. 

Done  at  Berlin,  Dec.  27,  1872. 


"WiLHELM. 

FuRST  V.  Bismarck. 


L-S.     I  Signed 


APPENDIX.  813 


ANNEX   A. 

LAW  RESPECTING  THE  NATIONALITY  OF  MERCHANT 
VESSELS  AND  THEIR  RIGHT  TO  CARRY  THE  FLAG  OF 
THE   CONFEDERATION  OF  OCTOBER  25,   18C7. 

We,  William,  &c.  &c. 

§  1.  All  vessels  of  the  confederate  states  intended  to  obtain  profit 
by  means  of  sea  voyages  have  in  future  to  carry  as  national  flag  the 
flag  of  the  Confederation  only  (Arts.  54  and  55  of  the  Constitution  of 
the  Confederation), 

§  2.  Only  such  merchant  vessels  are  entitled  to  carry  the  flag  of  the 
Confederation  which  are  the  exclusive  property  of  such  persons  who 
are  subjects  of  the  Confederation  (Art.  3  of  the  Constitution). 

Limited  liability  companies  and  companies  composed  of  personally 
liable  shareholders  established  within  the  territory  of  the  Confedera- 
tion in  Prussia,  likewise  such  fellowships  as  are  registered  in  accord- 
ance with  the  law  of  March  27,  1867,  in  so  far  as  these  companies  and 
fellowships  have  their  seat  within  the  territory  of  the  Confederation, 
and  that  they  are  composed  of  such  personally  liable  shareholders  as 
are  subjects  of  the  Confederation,  have  to  be  considered  as  on  a  level 
with  these  persons. 

§  3.  Within  the  states  of  the  Confederation  which  border  on  the 
sea,  registers  of  all  merchant  vessels  entitled  to  carry  the  flag  of  the 
Confederation  have  to  be  kept.  The  laws  of  the  Confederation  designate 
the  authorities  who  have  to  keep  the  registers  of  shipping. 

§  4.  The  register  of  shipping  is  public,  its  inspection  being  per- 
mitted to  everybody  during  the  ordinary  office  hours. 

§  5.  A  vessel  can  only  be  entered  on  the  register  of  shipping  of 
that  port  from  which  the  vessel  is  intended  to  be  employed  in  naviga- 
tion (home  port — port  of  registry). 

§  6.  The  entry  in  the  register  of  shipping  shall  contain — 

( 1 )  The  name  and  description  of  the  vessel  (whether  barque,  brig,  &c. ). 

(2)  Its  size  and  the  carrying  capacity  calculated  according  to  the 

size. 

(3)  The  date  and  place  of  building,  or,  if  it  had  carried  the  flag  of 

a  country  not  belonging  to  the  North  German  Confederation, 
the  circumstances  under  which  the  right  to  carry  the  flag  of 


814  MARITIME   LEGISLATION. 

the  Confederation  was  acquired,  and  besides,  if  possible,  the 
date  and  place  of  building. 

(4)  The  port  of  registry. 

(5)  The  name  and  particular  designation  of  the  owner,  or,  if  there 

are  several  owners,  the  names  and  particular  designations  of 
each  co-owner,  and  the  amount  of  the  share  each  holds  ;  if  a 
commercial  association  is  owner  or  co-owner,  the  firm  and 
place  where  the  association  is  established  ;  and  if  the  asso- 
ciation is  not  a  limited  liability  company,  the  name  and 
particular  designation  of  each  member  forming  the  com- 
mercial association ;  respecting  companies  composed  of 
personally  liable  and  of  limited  shareholders,  the  registra- 
tion of  all  such  members  as  are  personally  liable  instead  of 
the  registration  of  all  members  will  be  sufficient. 

(6)  The  legal  title  according  to  which  the  property  in  the  vessel  or 

in  the  several  shai-es  was  acquired. 

(7)  The  nationality  of  the  owner  or  of  the  co-owners. 

(8)  Date  of  registration  of  the  vessel. 

Each  vessel  must  be  entered  in  the  register  of  shipping  under  a 
separate  regular  number. 

§  7.  An  entry  in  the  register  of  shipping  cannot  be  made  before 
the  right  to  carry  the  flag  of  the  Confederation,  and  all  the  items  re- 
quired by  §  6,  have  been  credibly  established. 

§  8.  The  registration  authority  has,  in  virtue  of  the  entry  of  tlie 
vessel  in  the  register  of  shipping,  to  grant  a  document  (certificate) 
identical  therewith. 

Tlie  certificate  must  further  declare  that  all  proofs  required  by  §  7 
have  been  supplied,  as  well  as  that  the  vessel  has  the  right  to  carry  the 
flag  of  the  Confederation. 

§  9.  The  right  of  the  vessel  to  carry  the  flag  of  the  Confederation 
is  attested  1)y  the  certificate.  No  sea-pass  is  required  in  order  to  prove 
particularly  this  right. 

§  10.  The  right  to  carry  the  flag  of  the  Confederation  must  not  be 
exercised  before  the  registration  of  the  vessel  in  the  register  of  shipping 
nor  Ijefore  the  granting  of  the  certificate. 

§  11.  If  subsequently  to  such  entry  changes  occur  in  tlie  matters 
of  fact  referred  to  in  §  6,  they  must  be  recorded  in  the  ship's  register 
and  stated  on  the  certificate. 

In  case  of  the  loss  of  the  vessel,  or  of  having  forfeited  the  right  to 
carry  the  flag  of  the  Confederation,  the  vessel  is  to  be  struck  out  of  tlie 
register  of  shipping  and  the  certificate  is  to  be  returned,  unless  it  be 
credibly  attested  that  it  cannot  bo  rctiinicd. 


APPENDIX.  815 

§  12.  The  circumstances  which,  according  to  §  11,  necessitate  an 
entry  or  a  cancellation  in  the  register  of  shipping  have  to  be  reported 
and  credibly  proved  by  the  owner  to  the  registration  authority  in  com- 
pliance with  the  provisions  of  §  11,  within  six  weeks  after  expiration 
of  the  day  on  which  he  received  notice  thereof,  and  eventually  return- 
ing the  certificate  at  tlie  same  time. 

The  obligation  of  the  report  and  proof  rests — 

(1)  If  there  is  an  ownership,  with  all  the  co-owners ; 

(2)  If  a  limited  liability  company  is  owner  or  co-owner,  with  all 

the  directors  thereof ; 

(3)  If  another  commercial  association  is  owner  or  co  owner,  with 

all  the  personally  liable  members  thereof. 

(4)  If  the  change  consists  in  a  transfer  of  ownership,  by  which  the 

right  to  carry  the  flag  of  the  Confederation  is  not  affected 
with  the  new  owner  of  the  vessel  or  share. 
§  13.  If  a  vessel  which,  according  to  the  provision  of  §  2,  is  not 
entitled  to  carry  the  flag  of  the  Confederation,  nevertheless  sails  under 
the  flag  of  the  Confederation,  the  master  of  such  vessel  is  subject  to  a 
fine  up  to  five  hundred  thalers  or  to  imprisonment  up  to  six  months ; 
the  vessel  may  likewise  be  confiscated. 

§  14.  If  a  vessel  which,  according  to  §  10,  must  abstain  from  carry- 
ing the  flag  of  the  Confederation,  because  the  entry  in  the  i*egister  of 
shipping  or  the  granting  of  the  certificate  has  not  yet  taken  place, 
nevertheless  sails  under  the  flag  of  the  Confederation,  the  master  of  the 
vessel  is  subject  to  a  fine  up  to  one  hundred  thalers,  or  proportionate 
imprisonment  in  case  he  cannot  prove  that  the  unauthorised  hoisting  of 
the  flag  of  the  Confederation  was  done  without  his  fault. 

§  15.  Any  one  who  does  not  fulfil  the  obligation  resting  upon  him 
in  accordance  with  §  12  within  the  prescribed  period  of  six  weeks  is 
liable  to  the  punishment  threatened  by  §  14  in  case  he  cannot  prove 
that  he  was  faultless  in  not  complying  with  the  regulation.  The 
punishment  cannot  be  inflicted  if  befoi^e  the  expiration  of  the  time 
such  obligation  was  fulfilled  by  another  person  who  was  equally 
obliged  to  perform  the  same  duty.  The  punishment  is  doubled  towards 
such  person  as  likewise  neglects  to  fulfil  the  obligation  within  six  weeks 
after  the  day  on  which  the  judgment  becomes  valid  in  law. 

§  16.  If  a  foreign  vessel  outside  the  territory  of  the  Confederation 
becomes  by  transfer  the  property  of  a  person  who  is  a  subject  of  the 
Confederation,  and  acquires  thereby  the  I'ight  to  carry  its  flag,  the 
entry  in  the  register  of  shipping  and  the  certificate  may  be  replaced 
by  a  certificate  issued  by  the  consul  of  the  Confederation  in  whose 
district  the  vessel  at  the  time  of  the  transfer  was,  and  by  which  this 


816  MARITIME   LEGISLATION. 

official  attests  the  acquisition  of  the  right  to  carry  the  flag  of  the  Con- 
federation ;  but  such  consular  certificate  is  only  valid  for  the  duration 
of  one  year  from  its  date,  and  beyond  this  year  only  for  such  time  as 
the  voyage  may  be  prolonged  by  force  majeure.  As  long  as  con- 
sulates of  the  separate  states  of  the  Confederation  exist,  the  certi- 
ficate in  question  may  be  granted  by  the  consul  of  such  state  of  tlie 
Confederation  to  which  the  buyer  of  the  vessel  belongs,  and  no  such 
consid  nor  a  consul  of  the  Confederation  being  appointed,  by  the 
consul  of  another  state  of  the  Confederation  (Art.  56  of  the  Constitution 
of  the  Confederation). 

§  17.'  It  is  I'eserved  for  the  laws  of  the  Confederation  to  determine 
whether  and  which  smaller  vessels  (coasters,  &c.)  are  entitled  to  carry  the 
flag  of  the  Confederation  without  previous  entry  in  the  register  of 
shipping  and  the  grant  of  the  certificate. 

§  18.  Vessels  which,  in  accordance  with  §  2,  are  entitled  to  carry 
the  flag  of  the  Confederation,  and  which  in  consequence  of  the  pro- 
■visions  of  Art.  432  of  the  General  German  Mercantile  Law  are  already 
entered  on  the  ship's  register  of  a  confederate  state,  and  are  therefore 
already  provided  with  certificates  as  to  the  right  of  carrying  the  flag 
of  the  Confederation,  do  not  require  to  be  entered  again  on  the  register 
of  shipping  or  to  be  provided  with  new  certificates  in  order  to  exercise 
the  right  to  carry  the  flag  of  the  Confederation. 

§  19.  The  provisions  of  the  laws  of  the  Confederation  respecting  the 
keeping  of  the  existing   registers  of  shipping  apply  likewise   to   the 
keeping  of  registers  of  shipping  according  to  this  law  in  so  far  as  they 
are  in  accordance  with  the  provisions  of  the  same,  and  without  pre- 
judice to  later  alterations  by  the  laws  of  the  Confederation. 
§  20.  This  law  enters  into  force  on  April  1,  1868. 
Respecting  such  vessels  as  are  at  present  entitled  to  carry  the  flag 
of  Mecklenburg-Schwerin,  the  provisions  of  §  2  as  to  the  requirements 
of  the  nationality  do  not  enter  into  force  before  April  1,  1869. 
Done  at  Castle  Babelsberg,  October  25,  1867. 


/o-  i\  1    WiLHELM. 

(Signed)        \ 

Count  v.  Bismarck-Schonhausen. 


'  Repealed  by  the  law  of  June  28,  1873.     (See  p.  817.) 


APPENDIX.  817 


■REGISTRATION  AND   DESIGNATION  OF  MERCHANT 
VESSELS.     IMPERIAL   LAW   OF  JUNE   28,    1873. 

We,  William,  itc.  etc. 

§  1.  Ill  place  of  §  17  of  the  law  respecting  the  nationality  of  mer- 
cliant  vessels  and  their  right  to  carry  the  flag  of  the  Confederation, 
dated  October  25,  1867,  the  following  regulation  is  suljstituted  :  — 

'  Vessels  of  not  more  than  fifty  cubic  metres  gross  tonnage  are 
entitled  to  carry  the  national  flag  without  entry  into  the  register  of 
shipping  and  the  grant  of  the  certificate.' 

§  2.  The  change  of  name  of  a  vessel  once  entered  in  the  register  of 
shipping  may  only,  from  specially  urgent  reasons,  be  allowed.  The 
consent  of  the  Imperial  Chancellor's  Office  is  requisite  for  it. 

§  3.  Every  vessel  entered  in  the  register  of  shipping  must  have — 

(1)  Its  name  on  each  side  of  the  bow,  and 

(2)  Its  name,  and  the  name  of  the  port  of  registry,  on  the  perma- 

nent parts  of  th»  stern,  in  good,  visible,  and  securely  fastened 
lettei's. 
§  4.  In  case  of  contravention   against  the  provisions  of  §   3,  the 
master  of  the  vessel  is  subject  to  a  fine  up  to  one  hundred  and  fifty 
marks,  or  imprisonment. 

§  5,  This  law  enters  into  force  on  January  1,  1874. 
Done  at  Castle  Babelsberg,  June  28,  1873. 


T,s      '  /a-         i\  (  WiLHELM. 

•Li-»-     I  (Signed)  J 

i  FuRST  V.  Bismarck. 


LAW  RESPECTING   COAST    TRADING    VOYAGES,   DATED 
MAY  22,    1881. 

§  1.  The  right  to  load  goods  in  a  German  seaport,  and  to  carry  them 
to  another  German  seaport  in  order  to  be  discharged  there  (coast  trading 
voyages)  belongs  exclusively  to  German  vessels. 

§  2.  This  right  may  be  granted  to  foreign  vessels  by  State  treaty, 

3  G 


818  INJAEITIME    LEGISLATION. 

or  -with  consent  of  the  Council  of  the  Confederation  by  inipej-i.-il 
decree.' 

§  3.  Tlie  master  of  a  foreign  vessel  who,  unauthorised,  pursues 
coast  trading  voyages,  is  subject  to  a  fine  up  to  three  thousand  marks. 

And  the  vessel,  as  well  as  the  goods  so  illegally  forwarded,  may, 
besides  the  fine,  be  adjudged  to  be  confiscated,  irrespective  of  whether 
tliey  belong  to  the  party  condemned  or  not.  §  42  of  the  penal  code  is 
accordingly  to  be  applied. 

§  4.  Existing  treaty  stipulations  as  to  coast  trading  voyages  are 
not  afiected  by  this  law.- 

§  5.  This  law  enters  into  force  on  January  1,  1882. 

'  By  decree  of  December  29,  1881  :  '  The  right  to  load  goods  in  a  German  sea- 
port, and  to  carry  them  to  another  German  seaport  in  order  to  be  discharged  there 
(coast  trading  voyages),  has  been  granted  to  vessels  of  Belgium,  theBrazils,  Denmark, 
Great  Britain,  Italy,  and  Sweden-Norway.' 

^  The  present  treaty  regulations  to  which  §  4  of  the  above  law  refers  are  given 
in  detail  by  the  proclamation  of  the  Imperial  Chancellor,  dated  December  29, 1881. 
They  concern  Austro-Hungary,  Eoumania,  Siam,  and  Tonga. 


NDEX. 


ADM 

Admiralty  Jimsdiction  of  County 
Court,  621-623 

Admiralty  Practice,  suggestions  for 
the  improvement  of,  624-  626 

Affreightment,  principles  originally 
proposed,  295-297  ;  ch-culated  by 
Social  Science  Association,  297- 
298  ;  Discussion  upon  them  at 
Sheffield  Congress,  298  306 ; 
Draft  agreed  upon  at  Sheffield 
Congress,  306-308 ;  Resmne  of 
early  Bill  of  Lading  Discussions, 
309-310 ;  proposed  law  of,  and 
uniform  Bill  of  Lading.  See  Bill 
of  Ladmg 

Appellate  jurisdiction  in  maritime 
causes,  681-684 

Average.  See  General  Average, 
German  law  concerning,  741- 
750 


Bills  of  lading,  resume  of  early 
discussions  on  Eastern  trade,  309 ; 
proposed  uniform,  310;  Mr.  Rein, 
hold's  paper  on,  at  London  Con- 
ference 1879,311-325;  committee 
l^roposed  to  deal  with  subject,  326 ; 
Report  of  Committee  to  Berne 
Conference,  326-327 ;  Discussion 
at  Berne  Conference,  327-329 ; 
Report  of  Committee  to  Cologne 
Conference,  329-331 ;  Dr.  Stubbs' 
paper  on  the  formulation  of  a 
Model  Bill  of  Lading  at  Cologne 
Conference,  331-339 ;  Mr. 
Lowndes'   paper  on   a   common 


BIL 

form  of  Bill  of  Lading,  340-355  ; 
Committee  nommated  to  consider 
subject,  355 ;  Liverpool  Con- 
ference on,  356  Report  of  Hon. 
Secretary,  Dr.  Stubbs,  to  Liver- 
pool Conference,  356-358;  Report 
of  Mr.  Lowndes,  358-366;  Dis- 
cussion and  Resolutions  at  Liver- 
pool Conference,  366-379 ;  Liver- 
pool di-aft  bill  of  lading  as  adopted, 
379-382;  New  York  Produce 
Exchange,  Report  on  Liverpool 
BiU  of  Lading,  382-397 ;  Bill  of 
Lading  proposed  by  that  Com- 
mittee, 395-397;  New  Zealand 
and  Australian  underwriters'  pro- 
test against  Negligence  Clause, 
398-401 ;  London  Insm-anee 
Companies'  protest,  401-402 ; 
Both  considered  at  Milan  Con- 
ference, 402 :  Proposed  United 
States  Bill  of  Lading  Act,  402- 
405;  New  York  Produce  Ex- 
change Bill  of  Lading,  405-408  ; 
Meeting  called  by  Llo^'d's  to 
agree  to  a  '  Lloyd's '  Bill  of 
Lading, 409-417;  'Baltic 'meeting 
called  to  agree  to  a  common 
form  of  bill  of  Lading,  417-419  ; 
London  Chamber  of  Commerce, 
Meeting  for  same  purpose,  419- 
425  ;  Memorial  on  same  subject 
to  President  of  Roj'al  Commis- 
sion on  Merchant  Shipping,  426  ; 
'  Baltic'  meeting  to  consider  report 
of  their  committee,  428-430 ;  Re- 
consideration of  subject  at  Ham- 


820 


MARITIME   LEGISLATION. 


BIL 

burg  Conference,  430-476;  Rules 
prepared  by  Hamburg  Chamber 
of  Commerce,  435-438 ;  Ditto,  by 
Chamber  of  Commerce  of  Lubeck, 
440-441 ;  Dr.  Stubbs'  Draft  In- 
ternational Code  of  Affreight- 
ment, 443-447;  Bill  of  Ladmg 
and  Eules  of  Affi-eightment  as 
drawn  by  Committee,  466-470 ; 
Ditto  as  passed  by  Hamburg 
Conference,  472-475 ;  Protest  of 
Hamburg  Chamber  of  Commerce 
against,  476  ;  Resolutions  passed 
at  Antwerp  Conference,  477-478 ; 
Report  of  London  Chamber  of 
Commerce  Committee,  478-486 ; 
Act  of  Parliament  suggested  by 
this  Committee,  483-486 ;  Final 
Report  of  Committee,  486-487; 
Hambui-g  and  Bremen  Chambers 
of  Commerce  Bill  of  Lading  and 
Rules  of  Affreightment,  487-493 ; 
London  Conference  (1887),  493- 
506;  Sir  Charles  P.  Butt  on 
the  Negligence  Clause,  493-496; 
Discussion  on  this  Clause,  496- 
506;  Report  of  Royal  Commis- 
sion on  Loss  of  Life  at  Sea ; 
their  views  on  the  responsibilitj' 
of  shipowners  to  cargo-owners, 
507-508 ;  authors'  argument  in 
favour  of  a  Bill  of  Lading  being 
agreed  upon,  508  512.  See  also 
Affreightment 
Bottomry,  German  law  concerning, 
737-741 


Coast  Trading  voyages,  German 
law  concerning,  817,  818 

Collision,  limited  lialjility  in  cases 
of.  See  Limited  Liability  of  Ship- 
owners, German  law  concerning, 
751-754 

County  Courts,  Admiralty  jurisdic- 
tion of,  621-023 

Creditors'  sliips,  German  law  con- 
cerning, 754  759 

Crow,  Genuan  law  coiiceniiiig. 
700-711 


GEN 

Depositions,     See  Merchant  ships' 

logs 
Distressed    seamen,    German    law 

concerning  passage  home  of,  811, 

812 


Eastern  Trade  Bill  of  Lading,  209 


Freight,  when  ship  abandoned  at 
sea,  027-629 


Gener.\l  Average  :— Initiation  of 
movement  leading  to  York 
Antwerp  Rules,  1  ;  Glasgow 
Conference,  Discussion,  and  Re- 
solutions, 1-70;  Draft  Bill  em- 
bodying Glasgow  Resolutions, 
71-94  ;  remarks  upon  by 
Antwerp  Delegates,  95-107  ; 
Amendment  of  Bill  at  London 
Preliminary  Meetings,  1862,  107- 
109  ;  report  of  Preliminary 
Committee,  111  ;  return  of  at- 
tendance of  such  Committee,  112; 
resignation  of  Committee  of 
Llojxl's,  113 ;  correspondence  upon 
such  resignation,  113-116;  Lon- 
don Conference,  117  ;  Amended 
Draft  Bill,  117-119;  Committee 
appointed  to  settle  the  Bill,  120  ; 
epitome  of  members'  opinions, 
121-125  ;  Final  Draft  BiU,  126- 
128 ;  York  Congress  discussion 
and  resolutions,  128-205;  rules 
as  framed  at  York  Congress, 
205-209 ;  Bremen  Conference, 
210-213 ;  Committee  then  ap- 
pointed, 213-214 ;  Antwerp  Con- 
ference, 214  ;  alterations  made 
in  the  York  Rules,  244-245  ;  the 
York  and  Antwerp  Rules,  245- 
247  ;  protest  of  Lloyd's,  248  ; 
report  of  Committee  to  Frankfort 
Conference,  249-254;-  Frankfort 
a])proval  of  rules,  255  256  ;  rc- 
])ort  to  London  Conference  1879, 
255  259  ;      discussion      thereon. 


liNDEX. 


821 


GEN 

259-2G2  ;  report  to  Berne  Con- 
ference, 2G2-2bO;  report  to  Ham- 
burg Conference,  280  294 

German  General  Mercantile  Law: — 
Maritime  Commerce,  687-759  ; 
general  provisions,  C87  G90 ; 
ownership,  G90-G9G;  the  master, 
G9G-70G;  the  crew,  70G-711 ; 
freight  (goods),  711-735  ;  freight 
(passengers),  735-737  ;  bottomry, 
737-741;  Average,  741-750; 
damage  by  collision,  750 ;  salvage, 
751-754 ;  ships'  creditors,  754- 
759.  Maritime  Insurance,  759- 
790  ;  general  principles,  759-7G5  ; 
statements  to  be  made  by  assured, 
7G5-7G6  ;  obligations  of  assured 
arising  out  of  contract,  7GG-7G8  ; 
extent  of  the  risk,  768-778; 
extent  of  the  damage,  778-784 ; 
payment  of  losses,  784-787 ; 
cancelling  the  insurance,  787- 
788  ;  time  limitation  of  liability, 
788-790 

German  law  concerning  goods, 
711-735  ;  passengers,  735-737 

German  Maritime  Law,  regulation 
for  seamen  of  1872,  790-811  ; 
mtroductory  regulations,  790  i 
sea  voyage  books  and  articles, 
791-793  ;  seamen's  contract  and 
wages,  794-803 ;  disciplinary 
regulations  for  seamen,  803-804  ; 
punishment  of  seamen,  805-809  ; 
general  conditions,  810-811 

German  Maritune  Law,  Distressed 
Seamen,  regulation  of  1872,  811- 
812 

German  Maritime  Law,  nationality 
of  merchant  vessels,  813-816 

German  Maritime  Law,  registra- 
tion of  merchant  vessels,  817 

German  Maritime  Law,  regulation 
concerning  coast  trading  voyages, 
817-818 


Hamburg  Chamber  of  Commerce 
llules  of  Affreightment,  435- 
438,  487-493 


MER 

Hamburg  and  Bremen  Chambers 
of  Connuorce  Bill  of  Lading  and 
Bulcs  of  Affreightment,  487-493 

Hamburg  llules  of  Affreightment 
and  Bill  of  Lading,  472-475 


Insurance,  German  Law,  759  790 


Legislation,  necessity  for  amend- 
ing, 670  680 

Limited  liability  of  shipowners  {see 
the  '  Marie  de  Brabant '  case), 
513-526 ;  under  the  Merchant 
Shipping  Acts,  author's  observa- 
tions on, 610-619 

Liverpool  Bill  of  Ladmg,  379-382 

Lloyd's  Bill  of  Ladmg  proj)osed, 
409-417 

Log-books,  proposed  reform  in. 
See  Merchant  ships'  logs 

Lubeck  Chambers  of  Commerce 
Rules  of  Affreightment,  440-441 


'  Marie  de  Brabant,'  case  of,  513- 
526 ;  memorial  to  Board  of 
Trade,  513-523  ;  Board  of  Trade 
answer,  523-525  ;  author's  reply, 
524-526 

Masters,  German  law  concerning, 
696-706 

Merchant  Shipping  Acts  1854, 
observations  on,  527-607;  1855, 
607  ;  1862,  607 

Merchant  ships'  logs,  protests,  and 
depositions  before  receivers, 
655-669 ;  letter  from  London 
Salvage  Association  to  Privy 
Council,  656  658;  author's  me- 
morandum on  merchant  ships' 
protests,  658-663;  rejwrt  on 
merchant  ships'  protests  and  log- 
books to  London  Conference, 
664-668 

Merchant  ships,  German  law  con- 
cerning. See  under  German 
General  ^[ercantile  Law  and 
German  Maritime  Law 


6-22 


MARITIME   LEGISLATION. 


KEW 


New  York  Produce  Exchange  Bill 
of  Lading,  395-397,  405-408 


OwxEESHiP  of  merchant  ships, 
German  law  concerning,  690- 
696 


Passenger  freight,  German  law 
concerning,  735-737 

Piracj^,  wilful  destruction  of  pro- 
perty at  sea  to  be  regarded  as, 
630-654 

Protests.    See  Merchant  ships'  logs 


Sai-vage,  German  law  concerning, 

751-754 
Sea    voyage    books,   German    law 

concerning,  791-793 
Seamen,    German  law  concerning. 


YOR 

790-812.      {See  under    German 
Maritime  Law.) 
Ships'   Articles,  German   law  con- 
cerning, 791-793 

United    States   Bills    of   Laduig 
Act,  402-405 


Wages,  '  Gei*man  law  concerning 
seamen's,  794-803 

Wilful  destruction  of  property  at 
sea,  630-654 ;  memorandum  by 
author,  630-647;  the  '  Mosel' 
case,  648-649;  Dr.  Von  Spess- 
hardt's  observations  on,  650-652  ; 
the  '  Ferret '  case,  653-054 


York     and      Antwerp     Rules     of 
General  Average,  245-247 


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